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Article 1, Section 9, Clause 2



Document 3

Opinion on the Writ of Habeas Corpus

97 Eng. Rep. 29, 31--51 H.L. 1758

Answer of Mr. Justice Wilmot to the questions proposed to the Judges by the House of Lords, on the second reading of the bill, intituled, "An Act for giving a more Speedy Remedy to the Subject, upon the Writ of Habeas Corpus."

. . . . .

1st Question. "Whether in cases, not within the Act 31 Car. II. writs of habeas corpus ad subjiciendum, by the law as it now stands, ought to issue of course, or upon probable cause verified by affidavit?"

Answer. I am of opinion, that in cases not within the Act of the 31 Car. II. writs of habeas corpus ad subjiciendum, by the law as it now stands, ought not to issue of course, but upon probable cause verified by affidavit.

A writ which issues upon a probable cause, verified by affidavit, is as much a writ of right, as a writ which issues of course.

There are many other writs, besides the writ of habeas corpus, which fall exactly under the same circumstances: writs of mandamus, prohibition, 1 Syd. 65. Sir R. Raymond, 4. Supplicavit, ne exeat regnum, the writ of homine replegiando;--are all writs of right; but a proper case must be laid before the Court by affidavit, before the parties, praying such writs, may be entitled to them. They are the birthright of the people, subject to such provisions as the law has established for granting them. Those provisions are not a check upon justice, but a wise and provident direction of it.

The very learned and able men who framed the 31 Car. II. could not avoid taking these writs of habeas corpus for private custody, into their consideration. Three or four years before that Act passed, there had been two very great cases, extremely agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz. the cases of Lord Leigh, 2 Lev. 128, and Sir Robert Viner, Lord Mayor of London, 3 Keb. 434, 447, 470, 504. 2 Lev. 128. Freem. 389. But they wisely drew the line betweeen civil constitutional liberty, as opposed to the power of the Crown, and liberty as opposed to the violence and power of private persons. They thought this power of judging might be abused in favour of the Crown, but they saw no danger of an abuse of it as between one subject and another; and therefore they applied the remedy to the evil they had seen and experienced, and left the law as they found it in respect of private persons.

There is no such thing in the law, as writs of grace and favour issuing from the Judges: they are all writs of right; but they are not all writs of course.

Writs of course, are those writs which lie between party and party, for the commencement of civil suits: and if they are sued without a good foundation, the common law punishes the plaintiff for suing out the writ vexatiously, by amercing him "pro falso clamore." And by the statute law, he is to pay the costs of the suit.

But the writ of habeas corpus is not the commencement of a civil suit, where the party proceeds at the peril of costs, if his complaint is a groundless one: it is a remedial mandatory writ, by which the King's Supreme Court of Justice, and the Judges of that Court, at the instance of a subject aggrieved, commands the production of that subject, and inquires after the cause of his imprisonment; and it is a writ of such a sovereign and transcendent authority, that no privilege of person or place can stand against it. It runs, at the common law, to all dominions held of the Crown. It is accommodated to all persons and places. 2 Cro. 543. Palmer, 54. And, as all these remedial mandatory writs were, originally, rather the suits of the King than of the subject, the King's Courts of Justice would not suffer them to issue upon a mere suggestion; but upon some proof of a wrong and injury done to a subject.

Writs of habeas corpus, upon imprisonment for criminal matters, were never writs of course: they always issued upon a motion, grafted on a copy of the commitment; and cases may be put in which they ought not to be granted. 1 Lev. 1. Comber. 74. Habeas corpus was denied to one committed to Bridewell for lewdness. 3 Bul. 27. 2 Mod. 306. If malefactors, under sentence of death in all the gaols in the kingdom, could have these writs of course, the sentence of the law might be suspended, and perhaps totally eluded by them.

The 31 Car. II. makes no alteration in the practice of the Courts in granting them: they are still moved for, in term time, upon the same foundation as they were before: and when a single Judge in vacation grants them under the 31 Car. II. in criminal cases, a copy of the commitment, or an affidavit of the refusal of it, must be laid before him. He must judge, even in that case, whether treason or felony is specially expressed in the warrant of commitment: and there have been a great number of cases where a doubt has arisen on the frame and wording of the warrant; so that even upon the Act, the probable cause of bailing is really disclosed to the Judge, unless the copy of the commitment is refused, and then the law will presume every thing against it; and in cases out of the Act, which take in all kinds of confinement and restraint, not for criminal, or supposed criminal matter, and to which this question relates, it has been the uniform uninterrupted practice, both of the Court of King's Bench, and of the Judges of that Court, that the foundation, upon which the writ is prayed, should be laid before the Court or Judge who awards it.

The reasons of guarding the writ in this manner, I take to be these: there are many kinds of private restraint that are lawful. There was a much greater number formerly. The Reformation opened the doors of religious prisons; and the abolition of military tenures unfettered an unhappy class of men, called villeins, who lived in a state of captivity under their masters.

There are many kinds of restraint that exist at this day; some in the nature of punishments. In domestic government, which takes in the case of husbands, fathers, guardians, and masters, the law authorizes restraints, in order to enforce a performance of those natural, moral, and civil duties, which wives, children, wards, and apprentices, owe to their superiors, in their several relative capacities. These domestic governments could not subsist without such authorities; and therefore all States have endeavoured most anxiously, some in a greater degree, and others in a less degree, to preserve the greatest reverence for them.

The wisdom of our ancestors would not suffer this kind of authorities to be broken in upon wantonly, upon mere suggestion, and without seeing some reason for an interposition; because they saw it would have encouraged disobedience and rebellion in private families; and, at all events, must have abated that awe and respect which act so materially in the support of those authorities. They may be abused: if they are, the law says, let it be shewn, and the party shall have relief; but if he cannot shew they are abused, he is entitled to none. The legal presumption is certainly in favour of these authorities; the law will not presume they are unduly or irregularly executed.

But if these writs were to have issued without any case made, they must have issued indiscriminately, in the cases of lawful restraints, as well as unlawful ones; which would have been levelling all distinction between them, and have been subjecting the authority of fathers, husbands, guardians, and masters, to be canvassed and questioned in the same manner, and upon the same suggestions, as the extravagant outrages of persons acting without any authority at all.

It would have been proceeding upon an inversion of the legal presumption, and would thereby have destroyed all that order, discipline, and subordination in private families, which lead men into a habit of obedience, and dispose them early to obey the laws of their country.

When a Judge is called upon for a habeas corpus, in order to bail a man for a bailable offence, the injustice of the imprisonment is obvious and self-evident: for imprisonment before trial, being only to secure his being amenable to justice; if that security can be obtained by bail, in bailable offences, it is unjust that he should be kept in prison. The authority which committed him ought to have bailed him.

The authorities I have mentioned are equally legal, and therefore within the spirit and reason of the Habeas Corpus Act itself. The injustice of the imprisonment ought to appear in the first instance, before the party has a right to demand the remedy.

The law laid this check, to prevent that scene of disorder and confusion which must arise, if wives, children, wards, and apprentices, or any other person in their name, and on their behalf, were to be at liberty, without any foundation or cause shewn, to force a production of them in Westminster Hall, or before a Judge, where-ever he should happen to be, whenever they pleased, and as often as they pleased, at a risk of having them rescued out of their hands, "in transitu," and without a possibility of a satisfaction from any body.

There are many other lawful restraints besides those arising under the authorities I have mentioned:--All persons who are in custody upon civil process, or under special authorities, created by Act of Parliament, proceeding "civiliter," and not "criminaliter," against the persons who are the objects of them:--Persons who are bailed, paupers in hospitals or workhouses, madmen under commissions of lunacy, or confined by parish officers, under the Vagrant Act of 17 Geo. II. are all under a lawful confinement.

If all these persons were to have had these writs of habeas corpus of course, without shewing any cause or foundation for granting them, it would have been suffering this great remedial mandatory writ to have been used as an instrument of vexation and oppression; it would have become a weapon in the hands of madmen, and of dissolute, profligate and licentious people, to harrass and disturb persons acting under the powers which the law had given them.--One most frightful instance occurs: the case of a crew performing quarantine.--If this writ were to issue of course, it might bring back pestilence and death along with it.

The check upon the writ, by requiring a probable cause to be shewn before it issues, is only saying, "shew you want redress, and you shall have it:" and if a person cannot disclose such a case himself, as to shew he is aggrieved when he tells his own story, and is not opposed or contradicted by any body; it is decisive against his being in such a condition as to want relief.

Besides the practice, which is a decisive evidence of the law, it appears from a case, Hilary, 8th King William, called Griffiths's case, that the Court would not grant this writ, until a probable cause was laid before the Court that the party was entitled to it.

When this writ was first applied to relieve against private restraints, does not appear; but whenever it was, the manner of issuing it seems to have been adopted from that of the writ of homine replegiando, which was the true common law remedy for the assertion of liberty against a private person: and that writ never issued of course, but was applied for by petition to the Great Seal, and an affidavit made, disclosing the foundation on which it was prayed. State Trials, 3 vol. 632. 2 Lill. Pr. Reg. 23. 2 Freeman, 27, Jennings's case, upon affidavit made, that Jennings had got a young heiress into his custody without the consent of the guardian, upon the motion of the Attorney-General, a homine replegiando was granted. And as the law checked that writ of homine replegiando; the habeas corpus, which seems by practice to have been substituted in its place, took the check along with it.

Careful as the law is to prevent this writ from being abused, it cannot always prevent it: for if a man does not disclose the whole case, it may issue sometimes where it would not have issued, if the case had been fairly stated.

I will mention one case, which happened last term, and which shews the reason of the law, in expecting to see a full state of the case before the writ issues.

A gentleman applied to a Judge of the Court of King's Bench in vacation time, for a habeas corpus to his wife's mother, to bring up his wife, upon an affidavit of detention of her from him. As it was near term, the writ was returnable first day of term.

The fact was, that they had entered into articles of separation, which had determined his right to the custody of his wife; the mother brought the wife into Court, and returned the articles of separation. The return was of great length, and the mother was put to a very great expence in the making it, and if she had brought her daughter from the remotest part of the Kingdom, she could have had no satisfaction at all.

If the affidavit had disclosed the articles of separation, as it ought to have done, the Court, or Judge, would have said, "You have no right to the relief you pray, and therefore must not put the parties to costs and vexation, in a case which is remediless of your own shewing."

2d Question. Whether in cases, not within the said Act, such writs of habeas corpus, by the law as it now stands, may issue in the vacation by fiat from a Judge of the Court of King's Bench, returnable before himself?

Answer. I am of opinion that in cases, not within the Act of the 31st Car. II. writs of habeas corpus ad subjiciendum, by the law as it now stands, may issue in the vacation by fiat from a Judge of the Court of King's Bench, returnable before himself.

From the best inquiry I can make, writs of habeas corpus, in criminal cases, have been awarded by the Chief Justice of the King's Bench, and the Judges of that Court, long before the 31st Car. II.

The files of the fiats for writs made out in the Crown Office before the reign of Car. II. are not to be found there, except for four or five terms in Queen Elizabeth's time, one or two in James I. and for six or seven terms in Car. I.

No information is to be had from the records; but there are traces from cases in print, and from fiats since the Restoration, and before the 31st Car. II. that there had been a kind of unsettled practice for the Chief Justice, and Judges of the Court of King's Bench, granting them in vacation; and as the Judges of that Court are justices of peace all over the kingdom, they have a power of bailing, as incident to that authority; and I don't see how that power of bailing could well be exercised, without removing the person to be bailed before them by habeas corpus.

Catesby's case in vacation, is in Hilary, 43 Eliz. in the 7th vol. of the State Trials, 175.

I have a list of fiats for habeas corpus, since the Restoration, and before the 31 Car. II. Thirty of them appear to have been granted and made returnable before the Judges in vacation. Since the 31 Car. II. these writs have issued, in criminal cases, under that Act, when granted at the instance of a subject.

As to writs of habeas corpus in cases of private custody, I cannot ascertain the commencement of their being first issued by the Court.

By the common law, the liberty of a man's person against private persons, acting without any legal authority, was protected in this manner:

1st. First, the law gave every man a right to repel force by force, and to defend his liberty in the same manner as he might his life.

2d. As every unlawful imprisonment was a breach of the peace, it must be proceeded against as such, by justices of peace; and the delivery of the party perhaps enforced by a rigorous execution of that authority. It might also be punished by indictment. Satisfaction might likewise be recovered for the injury, by an action of false imprisonment.

The writ of homine replegiando, as mentioned before, was the only specific remedy provided by the common law, for the protection and defence of his liberty, against any private invasion of it.

Though there is an "obiter" saying by Justice Wild, in Carter, 222, of a case where the Court sent a habeas corpus to Dr. Prujean, beyond sea, for Sir Robert Carr's brother, yet it is so loosely stated, I lay no stress upon it.

The first case is the case of Sir Philip Howard, mentioned in Lord Leigh's case, and therefore must have been before that time. Lord Leigh's case was in the 27 Car. II. where habeas corpus was granted to bring up his wife. And the case of Viner and Emmerton was in the 27th year of Car. II. where a habeas corpus was granted to Viner to bring up his daughter-in-law, viz. his wife's daughter by a first husband. From that time to this, the Court has constantly granted them.

When the practice of the Chief Justice, and the Judges of the Court of King's Bench, granting these writs in vacation, in cases of private custody, first began, does not appear; but in all probability, it was either coeval with what the Court did, or very soon followed it; because the principle which supports the one, concludes as forcibly to the supporting the other: and the principle is this; if the writ is applicable to one species of unlawful imprisonment, it is in reason equally applicable to another. They are cases "ejusdem generis;" and therefore let the usage of issuing this writ have begun sooner or later, it was in the first instance a warrantable extension of a legal remedy in one case, to another case of the same nature; and I consider the usage in this case as the voice and testimony of the Judges, for near eighty years together, to the legality of the very first application of it.

The principle upon which the usage was founded, lay in the law; and the usage is nothing but a drawing that principle out into action, and a legal application of it to attain the ends of justice. It is upon this foundation only, that an infinite variety of forms, rules, regulations, and modes of practice in all Courts of Justice must stand, and can only be supported.

In many instances, an usage for some time is considered as an evidence of an antecedent immemorial usage, and therefore may be called the common law. 2 Co. 16 b., Lane's case. "The customs and courses of the King's Courts are as a law. The course of a Court makes a law."

But when the commencement of an usage can be fixed and ascertained, it cannot be supported by a presumption, and the legality of the usage must then depend upon some other principle; and that principle is this, "ubi eadem est ratio, ibi idem est jus;" a writ applicable to one kind of imprisonment, is in reason equally applicable to another.

It would be endless to enumerate instances where the King's Supreme Courts of Justice in Westminster Hall have, for the ease and benefit of the suitors of the Court, reformed, amended, and new moulded and modified their practice, as from experience and observation they found it would best advance, improve, and accelerate the administration of justice; and all acts done by Judges at their chambers, and by officers of the Court, either in term or out of term, are under a delegated authority from the Court. They are controulable by the Court, and obedience to them must be enforced by the Court. And the acts done in Court and out of Court, taken together, form that system of practice by which the benefit of the law is dealt out to the people.

I will mention an instance where a writ has been extended by usage to a purpose much beyond the original intention of it, viz. "ne exeat regnum;" which is a State writ to restrain people from going abroad; first used to hinder the clergy from going to Rome; then extended to laymen, machinating and concerting measures against the State; now applied to prevent a subterfuge from the justice of the nation, though in matters of private concernment, in order to get bail for an equitable demand, upon affidavit of intention to go abroad.

The legality of that application was settled in Car. II.'s time, upon an usage first begun in the time of James I. 1 Ch. Ca. 115. Read against Read, 2 Ch. Ca. 245. If usage, where the commencement of it was known, could legitimate a process which is to take away a man's liberty, surely usage, founded upon a legal principle, will legitimate a process which is applied to protect it.

I will mention a case in the Year Book 13 Hen. VII. fol. 17, where the mode of proceeding, in one kind of action, was translated to another, in favour of liberty. Action of trespass.--Plaintiff sets forth that he was a freeman, and that the defendant claimed him to be a villein, so that he durst not go about his business, and that the defendant had taken some of his goods; and he prayed that the defendant might give security to deliver them, and not take any more of them, or his body, pending the writ. This was the practice in a "homine replegiando;" and in a "homine replegiando," the plaintiff was to give security to deliver his body in case the action was against him.

It was resolved they should find security to one another, as if it had been a "homine replegiando;" and the Court said, "it was good discretion to favour liberty as much as might be by reason." They applied the provisions applicable to one writ, to another writ, because it fell under the same reason, and was to favour liberty.

It has been lately said, that the practice of issuing these writs by the Judges in vacation, was taken up under an apprehension of their being within the 31 Car. II. and that they have been marked in the Crown Office by that statute. How such an apprehension or practice could have prevailed, is to me inexplicable! No man could ever have such an apprehension who had ever read the Act: it is confined in words, and by the nature almost of every provision in it, to criminal, or supposed criminal, matter.

As to marking them by the statute, as there were fifty writs in criminal cases, for one writ in the case of private custody, the mistake might easily be made; if observed, could do no harm: it might quicken the returns; or be an inaccuracy in the office: I lay no stress upon it; because we see some few writs of habeas corpus, issued by the Court, marked by the statute, and yet the Act gives the Court of King's Bench no power of awarding these writs, but leaves that power exactly as it found it; and therefore it might as well be inferred, that the Court thought their power was by the statute, when their writ was marked by the statute, as that a single Judge thought his power was by the statute, because the writ was marked so.

I will never offer such an indignity to the very great and eminent men who have presided in that Court, and to the succession of Judges who have sat in it for near eighty years, as to say, that they founded this practice upon a mistake which could not have infected the meanest capacity.

I must say they never read the Act if they thought so. And Griffiths cases, already cited, shews that these kinds of habeas corpus were understood not to be within the Act.

Lord Chief Justice Hale does say, in second volume of Pleas of the Crown, 145, that this writ is not regularly to issue but in the term time, when the Court may judge of the return, or bail or discharge the prisoner; and in page 147, he says, it seems, "regularly," this writ should issue out of the Court of Chancery in vacation time, and out of the King's Bench in term time.

That word "regularly," alludes to some unsettled practice of the Judges issuing that writ in vacation.

This was a noble, but a posthumous, work, not fitted by him for the press, nor corrected; and, I have heard, a collection of notes made by him before the Restoration.

If it was, then the precedents and practice since the Restoration, were not taken into his consideration; and yet the practice after the Restoration, and even his own practice, varied the law extremely from what he asserted it to be in his book: for he says, that this writ issues for matter only of crime; and that assertion is confuted by his own practice, because he was Chief Justice when the writs were awarded in Lady Leigh's case, and Viner's case, in the 27 Car. II. which were not for matters of crime, but for private custodies; and Viner's case seems to have been as much agitated as any case could be, and there never was the least objection to the Court's right of awarding the writ. That circumstance is decisive against his authority upon the nature of this writ; or rather a declaration that he changed his opinion, and thought it might issue for other matters.

In 2 Ins. 53, and 4 Ins. 81, 182, Lord Coke says, "It ought to issue out of the Court of King's Bench in term time, and out of Chancery either in term time or vacation." All writs, in supposition of law, do issue in the term; and he might mean no more, than that Judges could not grant them by their own proper authority, as separate and detached from the Court, as they issue warrants.

First, this was no judicial determination; a mere "prolatum," which, as to the Court of Chancery, is very doubtful. For no writ of habeas corpus can be found to have ever issued out of the Court of Chancery, except some returnable in the House of Lords. The 16 Car. I. takes no notice of the Court of Chancery, which it is most probable it would have done, if it had been thought that the writ had issued out of that Court in vacation. And the 31 Car. II. seems to proceed upon a supposition, that it could not issue out of the Court of Chancery, because the 10th section expressly empowers the Court of Chancery to grant it, which would have been unnecessary, if it could have granted the writ before; and it only shews, what I really take to be the truth of the case, that there was no settled fixed practice, then established, of their issuing in vacation; but if they could not, nor ever did issue out of the Court of Chancery, it is the strongest reason that can be urged in support of the practice of issuing these writs by the Judges of the Court of King's Bench, in vacation, before the statute, because there could not otherwise have been a perfect and complete remedy at all times for the subject against imprisonment, for a bailable offence at the common law, and before the Statute of 31 Car. II.

That Act proceeds upon a supposition of a practice of that kind then prevailing. To what purpose is the writ to be marked by the statute, if the Judges, in vacation, could issue no writ of habeas corpus ad subjiciendum, but under this statute? That direction was to distinguish this writ, when issued at the suit of a subject to be bailed, from every other writ of this nature, which the Judges in vacation might issue: not meant to give a power which they did not exercise before, but to reduce an unsettled, informal, vague practice, into a formal regular system, as to the bailing for bailable offences, and to correct the abuse of any power which they had in fact exercised.

But upon Lord Coke's own principles, suppose no such practice when he wrote, yet a subsequent practice, founded upon legal principles, and an experience of its utility, has made the law; "per varios actus legem experientia fecit." Lord Coke's averment has not the weight it would have had, if made after 31 Car. II.; according to his own principles, the practice would have made it law; and as it appears by the fiats between the Restoration and the 31 Car. II. that three Chief Justices, Foster, Hyde, Keyling, and four Judges of the Court, Morton, Twisden, Mallet, and Wyld, granted these writs in vacation, and the practice is warranted by legal principles, and it is admitted they were always grantable "pro Rege," (which establishes the vacation right) the opinion both of Lord Hale and Lord Coke may be true; and, upon Lord Coke's own principle, if he had written twenty years after the Restoration, instead of thirty years before it, he must have been of the opinion I now give.

As to the 4th and 5th questions upon your Lordships paper, viz.

4th question. Whether, at the common law, and before the Statute of Habeas Corpus in the 31 King Car. II. any, and which, of the Judges could regularly issue a writ of habeas corpus ad subjiciendum, in time of vacation, in all or in what cases particularly?

5th question. Whether the Judges at the common law, and before the said statute, were bound to issue such writs of habeas corpus subjiciendum, in time of vacation, upon the demand of any person under restraint, or might they refuse to award such writ if they thought proper?

Answer. I think the Chief Justice of the Court of King's Bench, and the other Judges of that Court, did in fact issue them in vacation, before 31 Car. II. in criminal cases, and might do so on principles of law; possibly it might be done at first for the King only, and afterwards for the subject; but I do not think there was any settled course of practice observed in granting them before the statute, and that such unsettled manner of practice produced the statute in the cases of bailable offences: and, in cases out of the Act, usage has now fixed a regular course or manner of granting them; but I desire to be understood, that the present usage of granting them must be supported upon such principles of law, as would have supported the granting them when such usage first began. And I think they were not bound to grant them upon the demand of any person under restraint, at the common law, and before the statute, any more than they are bound to grant them now upon demand. There must have been some case made, before they could be bound to grant them at any time.

6th question. Whether the Judges, at the common law, and before the said statute, were bound to make such writs, so issued in time of vacation, returnable "immediate;" and could they enforce obedience to such writ so issued in time of vacation, if the party served therewith, should neglect or refuse to obey the same, and by what means?

Answer. I am of opinion, that the Judges at the common law, and before the said statute, were not bound to make writs of habeas corpus ad subjiciendum, issued in vacation time, returnable "immediate;" because I find by the files of fiats for these writs before the statute, that they were sometimes made returnable "immediate," and sometimes in term time; and I think the Judges cannot enforce obedience to any writs of habeas corpus, issued in time of vacation, (whether they issue in cases within the 31 Car. II. or in cases out of that Act) if the party served therewith, should neglect or refuse to obey the same, by any means but by attachment for a contempt, which can only issue out of Court in term time.

7th question. Whether, if a Judge, before the said statute, should have refused to grant the said writ upon the demand of any person under any restraint, had the subject any remedy at law, by action or otherwise, against the Judge for such refusal?

Answer. I think that the subject had no remedy at law, by action or otherwise, against the Judge for such refusal. The denying a writ stands upon the same ground as any other breach of duty.

8th question. Whether, in case a writ of habeas corpus ad subjiciendum, at the common law, be directed to any person returnable "immediate," such person may not stand out an alias and pluries habeas corpus, before due obedience thereto can be regularly enforced by the course of the common law?

Answer. I am of opinion, that in case a writ of habeas corpus ad subjiciendum, at the common law, be directed to any person returnable "immediate," the Court, upon the affidavit of the service of the writ, will grant a rule for an attachment.

By the course of the common law, he might have stood out an alias and pluries; but by practice the course is now altered, and in many cases the Court has enforced obedience to a writ for private restraints, in the first instance, by attachment, for the furtherance of justice. The method of proceeding by alias and pluries, is gone into disuse, in almost all cases, and the process by attachment substituted in its stead; and that practice stands upon this legal principle;--that disobeying the King's writ is a contempt, and equally a contempt to disobey the first writ as the last.

9th question. Whether the said Statute of the 31 Car. II. and the several provisions therein made for the immediate awarding and returning the writ of habeas corpus, extend to the case of any man compelled, against his will, in time of peace, either into the land or sea service, without any colour of legal authority; or to any cases of imprisonment, detainer, or restraint whatsoever, except cases of commitment for criminal, or supposed criminal, matters?

Answer. I think they do not extend to the case of a man so compelled; because the person who compels a man against his will, in time of peace, either into the land or sea service, without any colour of legal authority, is the criminal, and not the man impressed. And I think that Act doth not extend to any cases of imprisonment, detainer, or restraint whatsoever, except cases of commitment for criminal, or supposed criminal, matters.

10th question. Whether, in all cases whatsoever, the Judges are so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot discharge the person brought up before them, although it should appear most manifestly to the Judges, by the clearest and most undoubted proof, that such return is false in fact, that the person so brought up is restrained of his liberty by the most unwarrantable means, and in direct violation of law and justice?

Answer. I am of opinion, that no cases whatsoever, the Judges are so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot discharge the person brought up before them, if it shall most manifestly appear to the Judges, by the clearest and most undoubted proof, that such return is false in fact, and that the person so brought up is restrained of his liberty by the most unwarrantable means, and in direct violation of law and justice. But by the clearest and most undoubted proof, I mean the verdict of a jury, or judgment on demurrer, or otherwise in an action for a false return: and in case the facts averred in the return to a writ of habeas corpus, are sufficient in point of law to justify the restraint, I am of opinion, that the Court or Judge, before whom such writ is returnable, cannot try the facts averred in such return, by affidavits, in any proceeding grafted upon the return to such writ of habeas corpus.

The clearest and most undoubted proof in the law, is the verdict of a jury; and if the facts, set forth in a return, are disproved by a verdict, I think the Judges are not bound by those facts in any case whatsoever, from discharging the person brought up before them; but as I presume the question means, "proof by affidavit," in order to examine the truth or falsity of a return; I shall consider the question in that view.

To get at the bottom of it, the nature of this writ must first be considered: it is a demand by the King's Supreme Court of Justice to produce a person under confinement, and to signify the reason of his confinement.

In imprisonment for criminal offences, the Court can act upon it only in one of these three manners:

1st. If it appears clearly that the fact, for which the party is committed, is no crime; or that it is a crime, but he is committed for it by a person who has no jurisdiction, the Court discharges.

2d. If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction; or it appears to be a crime, but a bailable one, the Court bails him.

3d. If an offence not bailable, and committed by a competent jurisdiction, the Court remands or commits.

The nature and quality of the fact with which the party is charged, and the jurisdiction which has taken cognizance of it, are to be considered on the return; but the existence of the fact, that is, whether such a fact was committed, or whether there is such a warrant of commitment as the gaoler has returned, is a matter which belongs "ad aliud examen." The Court says, "Tell the reason why you confine him." The Court will determine whether it is a good or bad reason; but not whether it is a true or a false one. The Judges are not competent to this inquiry; it is not their province, but the province of a jury, to determine it: "ad questionem juris, non facti, judices respondent." The writ is not framed or adapted to litigating facts: it is a summary short way of taking the opinion of the Court upon a matter of law, where the facts are disclosed and admitted; it puts the case exactly in the same situation as if an action of false imprisonment had been brought, and the defendant had set forth a series of facts to justify the imprisonment, and the plaintiff had demurred to the plea. A return is the same as the justification demurred to; but, in both cases, if the facts are controverted, they must go to a jury; and when the return to a habeas corpus is made and filed, there is an end of the whole proceeding, and the parties have "no day" in Court; and therefore it is impossible that a proceeding, by way of trial, should be grafted upon it.

All the arguments upon the habeas corpus, in the seventh volume of the State Trials, 123, 156, take it for granted that it is impossible to go out of the return; and Mr. Calthorp, who was recorder of London, a very ingenious man, and argued for the subject, lays it down, "that it ought to be precise and direct, so as to be able to judge of the cause, whether sufficient or not. For there may not any doubt be taken to the return, be it true or false; but the Court is to accept the same as true; and if it be false, the party must take his remedy by action upon the case."

Mr. Selden likewise in his argument in the same book, page 156, says, "The keeper of the prison returns by what warrant he detains the prisoner, and with his return fixed to his writ, brings the prisoner to the Bar at the time appointed: when the return is thus made, the Court judgeth of the sufficiency or insufficiency of it, only out of the body of it, without having respect to any other thing whatsoever, that is, they suppose the return to be true, whatever it be; if it be false, the prisoner may have his action on the case against the gaoler that brought him." And it is for this reason the law requires such exact critical certainty in returns, because the party can have no answer to it upon the return. Nothing can be pleaded to it. It must be taken to be true, until twelve men, upon their oaths, have said that it is false.

To enter into a disquisition of this sort upon affidavits, would be confounding the offices of judge and jury, and introducing a mode of trial where no issue is or can be joined. The parties, in such a summary way of trial, must lose the benefit of a "viva voce" examination, where the looks, the manner, and deportment of the witness, are extremely material to confirm or discredit his testimony: it is found by the experience of ages, that nothing does so effectually explore the truth as a cross-examination, which strikes so suddenly that fiction can never endure it.

Another decisive reason against this mode of trial, is, that there is no compulsory method of forcing men to swear affidavits; so that if a person were obliged to prove the truth of his return by affidavit, he is totally destitute of any means of obliging men to make affidavits to prove them.

Another reason is, that the parties are entitled to no costs upon the return to a habeas corpus; and if the Court pronounces a wrong judgment upon the facts, there is no method of controverting it. But in an action for a false return, witnesses may be compelled to appear, and must be examined "viva voce." Costs will follow the event of the trial. If the verdict is false, or contrary to evidence, the law has established a legal method of controuling it.

Writs of mandamus stood exactly upon the same foundation. They are both the King's mandatory writs, issued at the instance and for the relief of the subject. The answer to them shall be taken to be true, till it has undergone that examination which the wisdom of our ancestors has established for the decision of facts. And the law gave such credit to returns of these writs, that they would not even suffer the facts to be denied and brought to trial before a jury in that course of proceeding. "You have asked a question; you shall take the answer as it is given you: if it is insufficient in point of law, the Judges will give instantaneous relief; if it is false in fact, you have received an injury; vindicate yourself against that injury by an action, and when you have proved the fact to be false, you will be entitled to a complete relief."

This rule was adhered to so strictly, that even in the case of annual offices in corporations, where the offices would expire before the truth or falsity of a return to a mandamus could be tried in an action for a false return, the law would not suffer the return to be traversed.

In 9th Queen Anne, an Act of Parliament was obtained, to permit the traversing returns to mandamus's for such offices as are within that Act; and all offices, not within that Act, stand as they did at the common law; and the facts, though ever so false, cannot be disproved but in an action for a false return, or in some cases by an information.

This is a strong Parliamentary declaration of what the law is, upon returns to writs of mandamus, which are always considered as standing upon the same foundation as returns to writs of habeas corpus.

I have looked through the books as carefully as I can, and so far from finding an instance of their being controverted by affidavit, where a person has been in custody of an officer under a legal authority, there is not an instance where the party is let in upon the record of the return to traverse any of the facts contained in it; but if that might have been done, yet it does not contradict my assertion, because a traverse carries it to its proper manner of trial, a trial by jury.

There are two cases, King and Gardiner, Cro. Eliz. 821. Trem. 354. Swallow and The City of London, 1 Syd. 287, where facts, consistent with the return, have been let in to be averred: I will cite them, because they shew that even facts, confessing the truth of the return, and avoiding it, must go to the jury.

A bailiff going to arrest a justice of the peace, he carried with him a hand gun: the 33 Hen. VIII. prohibits all persons from carrying such weapons. The justice sends out his servant and apprehends him for carrying this handgun; the justice convicts him upon the statute for the penalty, and sends him to gaol till he paid the penalty. Gardiner brings a habeas corpus, and removes himself into Court. The return was the warrant of execution, where the fact of his being a sheriff's officer did not appear; but the matter being disclosed to the Court, it was thought to be no offence, and that a minister of justice might carry a hand-gun. How was it to be come at? This was a fact which did not contradict the return, but confessed and avoided it; and yet the Court would not interpose by affidavit: they ordered a plea to be put in, comprising the whole matter, and upon the King's coroner and attorney confessing the plea, the man was discharged. But if it had been controverted, the plea put it into such a method, as would bring the fact to that form of trial, which the law has established as the best for investigating truth.

In the other case, Swallow was committed by the Court of Aldermen to Newgate, for refusing to accept the office of alderman, to which he had been elected by the ward where he lived; he was brought up by habeas corpus; after the return filed, it was moved for him to have leave to plead to the return, that he was an officer of the Mint, and by charter exempt from all offices--not a hint at an affidavit, and they put him to a writ of privilege, besides the plea; and as facts confessed and avoided the return, it was admitted: but still it brought the point to trial by jury; and it was agreed in that case, that matter, contrary to the return, could not be pleaded, but the party is put to his action for the false return.

It appears by Sir G. Treby's report, February 1688, that the House of Commons came to twenty-eight resolutions, to be carried into the Bill of Rights. Many of them were afterwards dropped, and amongst the rest, the twenty-fifth, which was, "that the subject should have liberty to traverse returns to writs of habeas corpus and mandamus."

This doctrine is echoed through all the books for three or four hundred years together. Y. B. 9 Hen. VI. fol. 44. Babington, who was then Chief Justice; "If the cause appear to us sufficient in itself, notwithstanding it be false, it is enough for us upon the return, which the whole Court agreed. And if he had returned that he was his villein, this shall not make an issue here, whether he be his villein or not: wherefore, if you cannot prove but that the cause is sufficient in itself, he shall be sent back again." 11 Coke 99, Bagges's case. 12 Coke 129, Hawkeridges case: "that upon an insufficient return, the party must be bailed or discharged; otherwise, if return shall be sufficient, when it is false." Godbolt, 129. If the return is false, the party cannot be delivered. 8 Co. 127 b.

I find no authority which warrants a difference between returns, when filed to writs of habeas corpus in cases of private custody, and of public custody, where the facts justifying the imprisonment have been set forth; that is, where there has been a full, complete, sufficient return.

For as to returns of process, which are to bring parties into Court, in order to have the right tried and examined, when the Court is proceeding not "legem dicere," but only "sistere in judicio," the Court often proceeds in a summary way upon such returns for the expedition of justice; the Court will not see their process disobeyed and eluded by tricks and falsities; and the case of Emerton and Viner, which was in Hilary term, 26 and 27 Car. II. and Easter and Trinity terms, 27 Car. II. seems to have proceeded upon this principle. It is reported in 3 Keb. 434, 447, 470, and 504. 2 Lev. 128. Freeman, 389, 401, 522.

I will state the case particularly, as it appears upon the record. In Hilary term, 26 and 27 Car. II. a habeas corpus issued to Sir Robert Viner, Lord Mayor of London, for the body of Bridget, the only daughter and heir of Sir Thomas Hyde. (Note, Sir Robert Viner had married Lady Hyde, the mother of Bridget, who was then dead.) In the same Hilary term, an "alias" habeas corpus issued under the penalty of £40; and afterwards in the same term, a "pluries" habeas corpus issued under the penalty of £500.

Sir Robert Viner to the "pluries" returned, that Bridget, the only daughter and heir of Sir Thomas Hyde, Knight, mentioned in the writ, at the time of the receipt of the aforesaid writ, or ever afterwards to that time, was not in his custody, as by the said writ is supposed; and for that reason he could not have the said Bridget before the King at the day and place mentioned in the writ, as by the said writ he was commanded.

A rule was then made that the return should be filed, and counsel be heard thereupon the next day. Upon that next day, the day after was given to Sir Robert Viner's counsel to speak to the return, and upon that next day, which was Saturday, this rule was made. "Upon the undertaking of Mr. Jefferys, as counsel for Sir Robert Viner, upon the writ of habeas corpus for the body of Bridget Hyde, that the said Robert Viner should bring the said Bridget into Court on Wednesday next, it is ordered, that no process in the mean time should be made out thereupon against the said Sir Robert Viner."

Upon the Wednesday, the following entry was made: "Bridget the only daughter and heir of Sir Thomas Hyde, Knight, being brought here into Court, in the custody of Sir Robert Viner, Knight, desired to remain in the custody of the said Sir Robert Viner." Upon the Friday afterwards, which was either the last day of the term, or very near the last day of the term, the following rule appears to have been made: "It is ordered, that Sir Robert Viner, before the end of next week, shall bind himself before the justices of this Court, or one of them, in a recognizance of £40,000 upon condition that the said Sir Robert Viner, before the end of the next week, between the entering into that recognizance, and one month next after Easter then next ensuing, should not, directly or indirectly, cause or procure, or knowingly consent, that the said Bridget, then being in the house of the said Sir Robert Viner, should be married or contracted in marriage with or to any person whatsoever, or should be solicited in order to marry with any person whatsoever, or should be delivered into the hands or custody of any person whatsoever, out of the custody of the said Sir Robert Viner; and if the said Sir Robert Viner shall not enter into such recognizance before the end of the next week, then let a writ of attachment issue against him for a contempt: and it is further ordered, that the said Sir Robert Viner shall permit Lady Acheson, the godmother, and the uncles and aunts of the said Bridget, and the sons and daughters of the said uncles and aunts (except John Emerton, one of her cousins) to have access to her, in order only to visit her, every Monday, Wednesday, and Friday, in every week, between the time of entering into the said recognizance and one month next after Easter, between the hours of four and seven in the afternoon: and it is further ordered" by the consent of counsel on both sides, "that the several affidavits now delivered here into Court, of and concerning the said Bridget, should be filed here in Court upon record." No affidavits are mentioned or taken notice of in any of the subsequent rules.

These are all the rules which appear to have been made in Hilary term; but Emerton brought an ejectment in that Hilary term, upon the demise of himself and Bridget his wife, for a messuage and some lands in North Mymms, in the county of Hertford, in order to establish his marriage, and that ejectment appears by the record to have been tried upon Tuesday next after five weeks from the Feast of Easter; and after this trial at Bar, by which Mr. Emerton established his marriage with Bridget Hyde, and upon the very same day of the trial, a habeas corpus issued to Sir Robert Viner, tested 11th May, to bring up the body of Bridget, the wife of John Emerton, lately called Bridget Hyde, the only daughter and heir of Sir Thomas Hyde, returnable on Friday next after the morrow of the Ascension; then an "alias" issued, tested 14th of May, and then a "pluries" issued, tested 15th May; and to all these writs of habeas corpus Sir Robert Viner made the same return, which was, "that Bridget, the wife of John Emerton, lately called Bridget Hyde, the only daughter and heir of Sir Thomas Hyde, in the said writ mentioned, at the time of the receipt of the aforesaid writ, or of any other writ of the King to him directed, or ever afterward to this time, was not, nor yet is, in his custody, as by the said writ is supposed, and for that reason he could not have the said Bridget at the day and place mentioned in the said writ, as by the said writ he was commanded." And upon the same day that these writs were returned, it was ordered, that the returns should be filed; and it does not appear that there were any other proceedings on those returns in that term.

But in the beginning of Trinity term, there appears to have been a rule made in the following words: "It is ordered, that unless Sir Robert Viner shall immediately permit William Emerton and Owen Davies to see Bridget, the wife of John Emerton, the son of the said William Emerton, or shall give notice to the said William Emerton and Owen Davies, where the said Bridget now is, that the said Robert Viner should attend the Court to-morrow;" and the next day, which was Saturday, a rule was made, "that the said Sir Robert Viner do attend the Court on Tuesday next without any further notice." But upon the Monday a rule was made, whereby "it was ordered, that the said Sir Robert Viner should attend the Court on Wednesday next peremptorily."

Upon the Thursday afterwards, "it was ordered, that Sir Robert Viner should attend the Court the next day, and that Mr. Francis Woodward, one of the officers of the Court, should give him notice of the order." Upon that next day, which was Friday, a rule was made, "that Sir Robert Viner should attend the Court upon the day after, to inform the Court where Bridget Emerton, wife of John Emerton, then was; otherwise a tipstaff should take him up and bring him into Court; and it was ordered, that Mr. Barrington should attend the Court the same day." Upon the Wednesday afterward a rule was made, "that the marshal should take up Sir Robert Viner upon the 30th day of October then next ensuing (the day after Lord Mayor's Day, when he would have been out of office) or as soon afterwards as he could take him, and bring him into Court." Early in Michaelmas term, to wit on Wednesday after one month of St. Michael, a rule was made, "that the marshal should take up Sir Robert Viner on the 13th November then next ensuing, or so soon afterward as he could take him; and that Mr. Emerton and his wife, and the other relations of the said Bridget, should, in the mean time, have free access to her at all convenient times."

By these proceedings it appears, that the Court was proceeding against him for a contempt in disobeying the writ; and as Sir Robert Viner had returned, that the said Bridget was not in his possession at the receipt of any writ, which was disproved by the record of their own Court, (for the rules I have stated shew she was in his possession) the fact, averred by the return upon the record, was falsified by evidence of equal dignity, viz. the records of the Court, grafted upon Sir Robert Viner's own acts and admissions.

In the next place, it does not appear by any acts of the Court, that any affidavits were read; for though the last rule of Court in Hilary term mentions, that the several affidavits delivered into Court concerning the said Bridget Emerton, should be filed; yet it does not appear from the records that they were ever read; and it is observable, that they were filed by consent of both parties; and if any affidavits were read, it could only be the affidavits mentioned in that rule; because no notice is taken of any affidavit in the subsequent rules, and consequently none could have been read to contradict the return to the second habeas corpus, because they were made two months before the second habeas corpus issued.

But suppose there had been no such proceedings upon the record, and affidavits had been read to shew that Bridget was in the custody of Sir Robert Viner, it would not encounter the doctrine I lay down; for it was not a return, averring facts justifying the cause of imprisonment, but only an excuse for not obeying the writ; and if it be false, the Court proceeds for a contempt in a summary way in this case as they would in all others. In Godbolt, 219, Smith, one of the officers of the Court of Admiralty, was committed by the Court of Common Pleas to the prison of the Fleet, because he had made return of a writ, contrary to what he had said in the same Court the day before. And to bring it home to my point, I would suppose there had been no verdict, evidencing the marriage of Bridget with Emerton, and that Sir Robert Viner had returned, that Bridget was not the wife of Emerton, but his own wife: in case there had been no legal disability, would the Court, upon affidavits, have tried the fact of that marriage?--If it were a case of that nature, it had been in point--I apprehend clearly they could not, without usurping a power which the law has not given them.

And it is further observable in that case, that there never was any rule made upon Sir Robert Viner to produce her. The compulsory rule was, that unless he should permit William Emerton and Owen Davies to see her, or give them notice where she was, he should attend the Court.

The next compulsory rule is, "that he should attend to inform the Court where she was, or otherwise that a tipstaff should take him up and bring him into Court;" and the two subsequent rules, for the marshal to take him up, and to bring him into Court, were in consequence of his non-attendance.

If they had considered the return as duly falsified by affidavit, and had proceeded upon that principle, they would have issued an attachment for the contempt in the first instance, as they had ordered in Hilary term upon the insufficiency of the first writ. And as Sir Robert Viner was indictable for making a false return, the affidavits might be properly read, as a foundation for the apprehending him; and the rather, because the marriage was established, and the Court saw he was guilty of a great offence in secreting and withholding a wife from her husband.

Affidavits may be read to collateral purposes; as in order to bail, or adjust the sum for which bail is to be given; and in the cases of madmen, when they have been brought up without any formal return at all, or only a return, "that I have the body ready according to the command of the writ." 22 Ass. pl. 56, battery and false imprisonment: defendant says plaintiff was in a rage, and did great mischief, whereupon the defendant and his other relations took him and bound him, and put him into a house, and chastised and beat him with a stick or rod.

As there was no return of a fact justifying the cause of imprisonment, the Judges were at liberty to look into it, and read affidavits, to direct them what to do upon it. For as the facts do not appear upon every return, the Court, or Judge, can be enabled only from affidavits to know whether they should interpose or not;--if satisfied the party was mad; though under no legal custody--they would not interpose. If doubtful,--they would direct an application for a commission, or put it into some way of inquiry; if quite satisfied it was a scene of oppression,--they would set the party at liberty.

So in cases of wives, children, and wards--all the Court, or Judge, does, is to see that the party is under no illegal restraint. The law so laid down, 1 Str. 445. 2 Str. 982, The King and Smith.

In the case of The King and Smith, habeas corpus was brought by the father against an aunt, for a child near fourteen; the return was only "ready in Court." She made an affidavit that the uncle had devised an estate to trustees, upon trust to pay her a yearly sum for the child's maintenance, and directed the money should be paid only to her; that the child had lived with her from its birth; that it was the uncle's desire it might so continue, the father being a very extravagant person.

The noble Lord, who then presided in the Court, said, "The detention being undefended, we must set the child at liberty: we can take no notice of the justification in the affidavit; we can determine nothing about the possession of the child: all the Court can do is to see that persons are not unlawfully confined."

In all these cases, the parties have opportunities of asserting their title at law, and may have the benefit of a writ of error. If we should take upon us the summary determination of this question, it would debar the parties of their writ of error, and such other privilege as the law has given.

The remedies, which the law has provided in different cases, should not be confounded. If there are any cases where facts have been entered into by affidavit, upon habeas corpus, yet unless there have been returns to such writs filed, and those returns have set forth a sufficient cause of the imprisonment, and affidavits have been read to contradict that cause in point of fact, such cases will not encounter the position I am now advancing.

A difference is made between the case of an officer and a mere private person--a difference in favour of interposing upon the return of an officer, rather than of a private person, because an officer is a minister of justice, and more under the controul of the Court than a mere stranger. If said to be a wrong-doer--that is begging the question; for it depends upon the truth or falsity of the return, whether he is a wrong-doer.

If a lawful cause of restraint is not returned, the party will be discharged for the insufficiency of it; but the facts, evidencing the legality, must not be presumed to be false, in order to warrant an examination whether they be false or not.

But suppose there was a distinction between custody by a public officer, and a private person acting without any authority whatsoever; yet, in regard to pressed men, they are in the custody of public officers, acting under an authority given by Act of Parliament; they are under a necessity of receiving them; they take them as persons within the description of the Act; and if they return them to be so, they have a right to have that fact tried by a jury as well as any other person. But it is not the privilege of an officer, but of an Englishman, to have a fact, justifying his conduct, and which he has averred upon record, tried by a jury.

It is said, that it is a very hard case, and that a man may be sent to the West Indies before the falsity of the return is proved in an action.--If there be any particular hardship, the Act which produces the case, must provide for it.

Judges will construe the law as liberally as possible in favour of liberty, but they cannot make laws; they are only to expound them: particular cases must yield to the law, and not the law to particular cases.

There is no difference between facts in a return, and any other facts averred upon record.

Suppose an action brought upon a bond for any given sum of money, and the party is arrested upon it, and he pleads that he never executed the bond; suppose he could shew by affidavits ever so clearly, that he did not execute the bond, or, by a copy of the register, that he was not born when it is dated. The Court could not interpose; why? Because the law says, the fact must be tried by a jury: the Judges have no more cognizance or power to try it than if they were not Judges.

If they were to do it where there was the clearest and most undoubted proof, they must do it in every case: for the degree of proof cannot alter or vary the mode of trial, and translate the examination of the fact from the jury to the Judge.

If a man is arrested and in custody, in a civil action, upon an affidavit made by the plaintiff of the debt, the Court will not, even for the purpose of discharging him out of custody, enter into any examination of the reality of the debt, though there is the most clear and undoubted proof laid before the Court of the falsity of the demand; it must be tried by a jury. The Court cannot look at it. We must administer justice, not as we wish the law to be, but as it is.

Laws are framed upon principles of general utility, and adapted to such cases as most frequently happen. Judges cannot set up natural reason against the reason of the law--cannot dispense with the law, for the sake of a particular case, arising upon an act which will expire with the session, and perhaps may never be enacted again; and in a case, where the hardship may be prevented by making a rule upon all the parties concerned in supporting the right to the recruit, that he shall not be carried away till the merits are tried in an action; or by letting him out, on security to return, if the merits are against him: and if the case was ever so remediless, I think we are not warranted to impeach, by affidavits, the truth of the return of an officer, acting under an Act of Parliament, which the law says ought to be impeached by a verdict.

But the case is not a remediless one: by the common law, the writ of "homine replegiando" will clearly relieve him. That writ, which is obtained out of the Court of Chancery upon an affidavit, goes to the sheriff, and commands him to replevy the man. If he cannot replevy him, he returns it, and a process goes out instantly to seize the body of the person who is supposed to have him in custody, and he is imprisoned himself till he produces the body. Fitzherbert, Nat. Bre. 67 b. (edition 1616), 5 Hen. 7, 3.

If a person is seized by virtue of the first writ, and the party, who has him in custody, claims any right to the detention of him, still he is to be delivered, upon giving security for his appearance, and to try the right in a Court of Justice; and if the point is determined against him, to deliver himself up to the person in whose custody he was: so that, by this writ, the party may be instantly set at liberty, without violating any rule of law whatsoever; and where a person is in actual custody, the sheriff will be sure to find him and deliver him; and it is a more sure and certain remedy in that case, than where a man is imprisoned by a mere private person, and may be shifted about so secretly, that the sheriff cannot find him.

There is another method by which a man impressed may get at his liberty, laying the gaoler and the return quite out of the case: and that is, by appealing to that summary jurisdiction, which the Court of King's Bench exercises over all inferior jurisdictions, powers, and authorities whatsoever.

The authority given to the commissioners, being a particular, special authority, if it is abused, they are answerable to the Court for it; and the Court will relieve the party oppressed by it in a summary way, by affidavits. But in that case, the complaint is founded on affidavits, and therefore must be answered by affidavits; and the fact is tried, between the persons who did the wrong, and the person who sustained it.

The Crown, being interested in the recruit, is likewise heard "pro interesse." The gaoler is no party to that complaint or inquiry; and as to him, the fact, which he has averred upon record, stands unimpeached; and if it is false, he must and can only be answerable for it in an action: and by this mode of proceeding, the party acquires such a discharge as will completely work a manumission of him from his condition of a soldier.

For if a gaoler should let a man go, or return only that he had his body ready, without shewing any cause of his imprisonment, or should make an insufficient return, or a false return; no man can say that an act of the gaoler can affect the right which the public have in the recruit. That must and can only be determined between the commissioners and the Crown on the one side, and the party imprisoned on the other.

The distinction, between a proceeding by habeas corpus and upon motion, I take to be this: In a proceeding by motion, the Court goes upon affidavits; and it may take its rise collaterally, various ways, out of disputes which come before the Court upon record. For instance, the return to a habeas corpus cannot be tried and set aside by affidavits; but the Court may take the matter up "diverso intuitu," in order to grant an information against a man who has seized another by outrage and violence, and detains him without any colour of authority; or perhaps to proceed against such person by way of information for a false return, which Hale says is an indictable offence; or in order to commit him for an outrageous breach of the peace.

Suppose habeas corpus for a maid taken away, according to the Statute of Philip and Mary, or of 3 Henry VII.; by the one, a great misdemeanor,--by the other a felony; and the party returns that he is married, that she is his wife. The fact, or validity of the marriage, cannot be controverted upon the return; but upon affidavits the Court might commit him for a misdemeanor in one case, and for a felony in the other. And in cases where the Court has a discretion as to bailing, the Court might put such terms upon him as would force the immediate relief of the person imprisoned and agreeable to these principles, is The King and White, Trin. 1745, where the Court would not discharge the impressed man, T. Reynolds, upon the affidavits contradicting the return; but being brought up on a Monday, and the writ and return, which was full and sufficient, being filed, the Court ordered him to be brought up again on Wednesday; and upon reading the several affidavits of Reynolds and others on his behalf, made a rule upon the commissioners and the Master, to shew cause the next day, why he should not be discharged out of the custody of the said Richard White. The rule was as follows:

Monday, 1st July 1745. "The defendant being brought here into Court, in custody of Richard White, Esquire, Major of the Tower of London, by virtue of His Majesty's writ of habeas corpus, it is ordered, by consent of counsel on both sides, that the name Thomas White, mentioned in the said writ, be made Richard White: and it is further ordered, that the said writ and returns thereto be filed, and that the said Richard White bring into this Court the body of the said defendant Thomas Reynolds on Wednesday next; and upon reading the several affidavits of Thomas Kell and others, George Stewart and others, Thomas Reynolds and John Mangaar, it is further ordered, that Thomas Bedwell, Francis Bedwell, Charles Scriven, John West, and John Robinson (commissioners under the Act) do to-morrow shew cause why the said defendant should not be discharged out of the custody of the said Richard White, upon notice of this rule to be given to them respectively in the mean time."

There is a decisive mark upon this rule, which shews the Court industriously avoided twisting the complaint against the commissioners with the return; because they ordered the rule on the commissioners to come on at a different day: whereas, if the affidavits had been levelled and pointed at the return, the Court would have directed them to have come on together; and it is extremely material, that Major White is not so much as a party to that part of the rule which is upon the commissioners; the Court considered the return with regard to him as sacred, and not to be litigated by affidavits against him.

If the Court had meant to have impeached the truth of the return by affidavits, as between Reynolds the man impressed, and White the gaoler, they would have certainly given White an opportunity of supporting the truth of his return by affidavits.

Wednesday. Sir John Strange for Major White, said, the question was of great consequence to the liberty of the subject on the one hand, and to the service of the public on the other, and that there had not been time for him to be sufficiently prepared: he proposed therefore, without prejudice to the question, to admit him to bail. The rule upon the commissioners was discharged; and it appears that the defendant's recognizance was afterwards discharged.

I have searched for writs of habeas corpus and returns to them, in Queen Anne's time. There are many; eight of the persons are remanded, seven are discharged; as to some, it does not appear what was done. And in every case where the party was remanded, the return appears to be good upon the face of it; where discharged, insufficient upon the face of it.

I directed a search to be made for affidavits, or for any rules that might have been made upon the discharge or remanding of the parties. The affidavits were stolen many years ago out of the office; and there are no rules to be found in the rule-book except one, in Bolton's case, which I will mention by and by, and submit to your Lordships, as the most decisive instance which can be produced, that the return was sacred, and could not be touched but by consent.

As no more light could be got from that inquiry, I then examined the returns where the parties were remanded and where they were discharged; and if I could have found two returns in the same words, one where the person was remanded, and another where he was discharged, it would have afforded a very strong reason to have believed that some extrinsic collateral evidence had been received, which had produced a remand in the one case, and a discharge in the other; but as all the returns where the parties were remanded are sufficient, and all the discharges are in cases where the returns are insufficient, it demonstrates most clearly to my satisfaction, that the Court proceeded only upon the sufficiency or insufficiency of the return, on the face of it.

There is one return of an enlisted soldier, Alexander James, committed by the captain to the Savoy, plainly insufficient. The captain is not stated to have had any authority to commit, and no offence is stated for which the soldier was committed; he is not so much as said to be a captain of the regiment in which he was enlisted.

The case of Bolton is in Hil. 3d of Queen Anne. A rule was made by consent to refer it to arbitrators, to determine whether he was such a person as was within the description of the Act. If the Court could have discharged upon reading affidavits, why put it into any other mode of enquiry? They saw it could be done only by action for a false return; but upon consent, they might have directed an issue to try, or fixed upon referees, who are a jury of the party's own choosing, to try whether he was within the Act or not: it is nothing more than if the parties, upon a return to a mandamus, should agree to refer the fact to referees, instead of going to trial by a jury: it is so far from proving, that the Court could try the question by affidavits, it proves that they could not; and that inference is strengthened by seeing no traces of such an examination. There is no mention of it in any books of that time; and it is not to be conceived that it should by accident have happened, that all the men, remanded upon good returns, had no evidence, and that all the persons discharged, had.

I am clearly of opinion that Judges are not bound down by any fact set forth on a return, if disproved by a verdict; but that the Court can look at no other proof, as to any facts averred on a return, admitting and justifying the imprisonment.

The other Judges delivered their opinions "seriatim" on the same questions, the 25th, 26th, and 30th May 1758; and on the 2d June,

It was ordered, that the bill, intituled, "An Act for giving a more Speedy Remedy to the Subject upon the Writ of Habeas Corpus," be

Rejected.


The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 2, Document 3
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