WILLIAM BLACKSTONE, COMMENTARIES
VOLUME III, Pages 129-137
3. THE writ de homine replegiando l lies to replevy a man out of prifon, or out of the cuftody of any private perfon, (in the fame manner that chattels taken in diftrefs may be replevied, of which in the next chapter) upon giving fecurity to the fheriff that the man fhall be forthcoming to anfwer any charge againft him. And, if the perfon be conveyed out of the fheriff's jurifdiction, the fheriff may return that he is eloigned, elongatus ; upon which a procefs iffues (called a capias in withernam) to imprifon the defendant himfelf, without bail or mainprize m, till he produces the party. But this writ is guarded with fo many exceptions n, that it is not an effectual remedy in numerous inftances, efpecially where the crown is concerned. The incapacity therefore of thefe three remedies to give complete relief in every cafe hath almoft intirely antiquated them, and hath caufed a general recourfe to be had, in behalf of perfons aggrieved by illegal imprifonment, to
4. THE writ of habeas corpus, the moft celebrated writ in the Englifh law. Of this there are various kinds made ufe of by the courts at Weftminfter, for removing prifoners from one court into another for the more eafy adminiftration of juftice. Such is the habeas corpus ad refpondendum, when a man hath a coufe of action againft one who is confined by the procefs of fome inferior court ; in order to remove the prifoner, and charge him with
this new action in the courts above o. Such is that ad fatisfaciendum, when a prifoner hath had judgment againft him in an action, and the plaintiff is defirous to bring him up to fome fuperior court to charge him with procefs of execution p. Such alfo are thofe ad profequendum, teftificandum, deliberandum, deliberandum, & c ; which iffue when it is neceffary to remove a prifoner, in order to profecute or bear teftimony in any court, or to be tried in the proper jurifdiction wherein the fact was committed. Such is, laftly the common writ ad faciendum et recipiendum, which iffues out of any of the courts of Weftminfter-hall, when a perfon is fued in fome inferior jurifdiction, and is defirous to remove the action into the fuperior court ; commanding the inferior judges to produce the body of the defendant, together with the day and caufe of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum caufa) to do and receive whatfoever the king's court fhall confider in that behalf. This is a writ grantable of common right, without any motion in court q ; and it inftantly fuperfedes all proceedings in the court below. But, in order to prevent the furreptitious difcharge of prifoners, it is ordered by ftatute 1 & 2 P. & M. c. 13. that no habeas corpus fhall iffue to remove any prifoner out of any gaol, unlefs figned by fome judge of the court out of which it is awarded. And, to avoid vexatious delays by removal of frivolous caufes, it is enacted by ftatute 21 Jac. I. c. 23. that, where the judge of an inferior court of record is a barrifter of three years ftanding, no caufe fhall be removed from thence by habeas corpus or other writ, after iffue or demurrer deliberately joined : that no caufe, if once remanded to the inferior court by writ of procedendo or otherwife, fhall ever afterwards be again removed : and that no caufe fhall be removed at all, if the debt or damages laid in the declaration do not amount to the fum of five pounds. But an expedient r having been found out to elude the latter branch of the ftatute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the courfe of the court
the habeas corpus removed both actions together) it is therefore enacted by ftatute 12 Geo. I. c. 29. that the inferior court may proceed in fuch actions as are under the value of five pounds, notwithftanding other actions may be brought againft the fame defendant to a greater amount.
BUT the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad fubjiciendum ; directed to the perfon detaining another ; and commanding him to produce the body of the prifoner with the day and caufe of his caption and detention, ad faciendum, fubjiciendum, et recipiendum, to do, fubmit to, and receive, whatfoever the judge or court awarding fuch writ fhall confider in that behalf s. This is a high prerogative writ, and therefore by the common law iffuing out of the court of king's bench not only in term-time, but alfo during the vacation t, by a fiat from the chief juftice or any other of the judges, and running into all parts of the king's dominions : for the king is at all times intitled to have an account, why the liberty of any of his fubjects is reftrained u, wherever that reftraint may be inflicted. If it iffues in vacation, it is ufually returnable before the judge himfelf who awarded it, and he proceeds by himfelf thereon w ; unlefs the term fhould intervene, and then it may be returned in court x. Indeed, if the party were privileged in the courts of common pleas and exchequer, as being an officer or fuitor of the court, an habeas corpus ad fubjiciendum might alfo have been awarded from thence y : and, if the caufe of imprifonment were palpably illegal, they might have difcharged him z ; but, if he were committed for any criminal mater, they could only have remanded him, or taken bail for his
appearance in the court of king's bench a ; which occafioned the common pleas to difcountenance fuch applications. It hath alfo been faid, and by very refpectable authorities b, that the like habeas corpus may iffue out of the court of chancery in vacation : but, upon the famous application to lord Nottingham by Jenks, notwithftanding the moft diligent fearches, no precedent could be found where the chancellor had iffued fuch a writ in vacation c, and therefore his lordfhip refufed it.
IN the court of king's bench it was, and is ftill, neceffary to apply for it by motion to the court b, as in the cafe of all other prerogative writs (certiorari, prohibition, mandamus, & c) which do not iffue as of mere courfe, without fhewing fome probable caufe why the extraordinary power of the crown is called in to the party's affiftance. For, as was argued by lord chief juftice Vaughan e, “ it is granted on motion, becaufe it cannot be had of courfe ; and there is therefore no neceffity to grant it : for the court ought to be fatisfied that the party hath a probable caufe to be delivered.” And this feems the more reafonable, becuafe (when once granted) the perfon to whom it is directed can return no fatisfactory excufe for not bringing up the body of the prifoner f. So that, if it iffued of mere courfe, without fhewing to the court or judge fome reafonable ground for awarding it, a traitor or felon under fentence of death, a foldier or mariner in the king's fervice, a wife, a child, a relation, or a domeftic, confined for infanity or other prudential reafons, might obtain a temporary enlargement by fuing out an habeas corpus, though fure to be remanded as foon as brought up to the court. And therefore fir Edward Coke, when chief juftice, did not fcruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy ; there appearing, upon his own fhewing, fufficient grounds to confine him g. On the other hand, if a
probable ground be fhewn, that the party is imprifoned without juft caufe h, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “ may not be denied, but ought to be granted to every man that is committed, or detained in prifon, or otherwife reftrained, though it be by the command of the king, the privy council, or any other i. ”
IN a former part of thefe commentaries k we expatiated at large on the perfonal liberty of the fubject. It was fhewn to be a natural inherent right, which could not be furrendered or forfeited unlefs by the commiffion of fome great and atrocious crime, nor ought to be abridged in any cafe without the fpecial permiffion of law. A doctrine co-eval with the firft rudiments of the Englifh conftitution ; and handed down to us from our Saxon anceftors, notwithftanding all their ftruggles with the Danes, and the violence of the Norman conqueft : afferted afterwards and confirmed by the conqueror himfelf and his defcendants : and though fometimes a little impaired by the ferocity of the times, and the occafional defpotifm of jealous or ufurping princes, yet eftablifhed on the firmeft bafis by the provifions of magna carta, and a long fucceffion of ftatutes enacted under Edward III. To affert an abfolute exemption from imprifonment in all cafes, is inconfiftent with every idea of law and political fociety ; and in the end would deftroy all civil liberty, by rendering it's protection impoffible : but the glory of the Englifh law confift in clearly defining the times, the caufes, and the extent, when, wherefore, and to what degree, the imprifonment of the fubject may be lawful. This induces an abfolute neceffity of expreffing upon every commitment the reafon for which it is made ; that the court upon an habeas corpus may examine into it's validity ; and according to the circumftances of the cafe may difcharge, admit to bail, or remand the prifoner.
AND yet, carly in the reign of Charles I, the court of king's bench, relying on fome arbitrary precedent (and thofe perhaps mifunderftood) determined l that they could not upon an habeas corpus either bail or deliver a prifoner, though committed without any caufe affigned, in cafe he was committed by the fpecial command of the king, or by the lords of the privy council. This drew on a parliamentary enquiry, and produced the petition of right, 3 Car. I. which recites this illegal judgment, and enacts that no freeman hereafter fhall be fo imprifoned or detained. But when, in the following year, Mr Selden and others were committed by the lords of the council, in purfuance of his majefty's fpecial command, under a general charge of “ notable contempts and ftirring up fedition againft the king and government,” the judges delayed for two terms (including alfo the long vacation) to deliver an opinion how far fuch a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding fureties for the good behaviour, which ftill protracted their imprifonment ; the chief juftice, fir Nicholas Hyde, at the fame time declaring m, that “ if they were again remanded for that caufe, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the caufe of the imprifonment.” But this was heard with indignation and aftonifhment by every lawyer prefent ; according to Mr Selden's own account of the matter, whofe refentment was not cooled at the diftance of four and twenty years n.
THESE pitiful evafions gave rife to the ftatute 16 Car. I. c. 10. §. 8. whereby it was enacted, that if any perfon be committed by the king himfelf in perfon, or by his privy council, or by any
of the members thereof, he fhall have granted unto him, without any delay upon any pretence whatfoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas ; who fhall thereupon, within three court days after the return is made, examine and determine the legality of fuch commitment, and do what to juftice fhall appertain, in delivering, bailing, or remanding fuch prifoner, Yet ftill in the cafe of Jenks, before alluded to o, who in 1676 was committed by the king in council for a turbulent fpeech at Guildhall p, new fhifts and devices were made ufe of to prevent his enlargement by law ; the chief juftice (as well as the chancellor) declining to award a writ of habeas corpus ad fubjiciendum in vacation, though at laft he thought proper to award the ufual writs ad deliberandum, & c, whereby the prifoner was difcharged at the Old Bailey. Other abufes had alfo crept into daily practice, which had in fome meafure defeated the benefit of this great conftitutional remedy. The party imprifoning was at liberty to delay his obedience to the firft writ, and might wait till a fecond and a third, called an alias and a pluries, were iffued, before he produced the party : and many other vexatious fhifts were practiced to detain ftate-prifoners in cuftody. But whoever will attentively confider the Englifh hiftory may obferve, that the flagrant abufe of any power, by the crown or it's minifter, has always been productive of a ftruggle ; which either difcovers the exercife of that power to be contrary to law, or (if legal) reftrains it for the future. This was the cafe in the prefent inftance. The oppreffion of an obfcure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which is frequently confidered as another magna carta q of the kingdom ; and by confequence has alfo in fubfequent times reduced the method of proceeding on thefe writs (though not within the reach of that ftatute, but iffuing merely at the common law) to the true ftandard of law and liberty.
`THE ftatute itfelf enacts, 1. That the writ fhall be returned and the prifoner brought up within a limited time according to the diftance, not exceeding in any cafe twenty days. 2. That fuch writs fhall be endorfed as granted in purfuance of this act, and figned by the perfon awarding them r. 3. That on complaint and requeft in writing by or on behalf of any perfon committed and charged with any crime (unlefs committed for treafon or felony expreffed in the warrant, or for fufpicion of the fame, or as acceffory thereto before the fact, or convicted or charged in execution by legal procefs) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant or affidavit that a copy is denied, fhall (unlefs the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for fuch prifoner, returnable immediately before himfelf or any other of the judges ; and upon the return made fhall difcharge the party, if bailable, upon giving fecurity to appear and anfwer to the accufation in the proper court of judicature . 4. That officers and keepers neglecting to make due returns, or not delivering to the prifoner of his agent within fix hours after demand a copy of the warrant of commitment, or fhifting the cuftody of a prifoner from one to another, without fufficient reafon or authority (fpecified in the act) fhall for the firft offence forfeit 100 l. and for the fecond offence 200 l. to the party grieved, and be difabled to hold his office. 5. That no perfon, once delivered by habeas corpus, fhall be recommitted for the fame offence on penalty of 500 l. 6. That every perfon committed for treafon or felony fhall, if he requires it the firft week of the next term or the firft day of the next feffion of oyer and terminer, be indicted in that term or feffion, or elfe admitted to bail ; unlefs the king's witneffes cannot be produced at that time : and if acquitted, or if not indicted and tried in the fecond term or feffio, he fhall be difcharged from his imprifonment for fuch imputed offence : but that no perfon, after the affifes fhall be
opened for the county in which he is detained, fhall be removed by habeas corpus, till after the affifes are ended ; but fhall be left to the juftice of the judges of affife. 7. That any fuch prifoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas ; and the lord chancellor or judges denying the fame, on fight of the warrant or oath that the fame is refufed, forfeit feverally to the party grieved the fum of 500 l. 8. That this writ of habeas corpus fhall run into the counties palatine, cinque ports, and other privileged places, and the iflands of Jerfey and Guernfey. 9. That no inhabitant of England (except perfons contracting, or convicts praying, to be tranfported ; or having committed fome capital offence in the place to which they are fent) fhall be fent prifoner to Scotland, Ireland, Jerfey, Guernfey, or any places beyond the feas, within or without the king's dominions : on pain that the party committing, his advifors, aiders, and affiftants fhall forfeit to the party grieved a fum not lefs than 500 l. to be recovered with treble cofts ; fhall be be difabled to bear any office of truft or profit ; fhall incur the penalties of praemunire ; and fhall be incapable of the king's pardon.
THIS is the fubftance of that great and important ftatute : which extends (we may obferve) only to the cafe of commitments for fuch criminal charge, as can produce no inconvenience to public juftice by a temporary enlargement of the prifoner : all other cafes of unjuft imprifonment being left to the habeas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable to antient precedents s and the fpirit of the act of parliament, that the writ fhould be immediately obeyed, without waiting for any alias or pluries ; otherwife an attachment will iffue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjuft and illegal confinement. A remedy the more neceffary, becaufe the oppreffion does not always arife from the ill-nature, but fometimes from the mere inattention, of govern-