to the quick so that they may use them or shun them as they find occasion: and for this reason it is that they make some remarks upon them in their minutes, as well as upon the affairs transacted by them. And therefore since the five persons who made up the Cabal in England..., and who your lordship may remember were the dukes of Buckingham and Lauderdale, the earls of Shaftesbury and Arlington, and the Lord Treasurer Clifford, were very distinguishable for the stations they filled, the offices they held and the parts each of them acted in the government; I find this character given of them: for the duke of Buckingham, as he was the king's favourite, so he really deserved to be so, as being very capable to be a minister of state if his application to business had been answerable to his talents; if his mind, which was furnished with excellent endowments, had not been distracted by libertinism, which was in him to an extreme degree; and by a love to his pleasures, which made one of those persons in the world that was fittest for great and solid things vain and frivolous. Of the duke of Lauderdale there is little or nothing said but that he is a great and quaint politician, and no question but he has merited that character at their hand. Of my lord Clifford they are as profuse in their praises, as I doubt they have been too of their money; saying he was a person who wanted nothing but a theatre where virtue and reason had been much more in use than it was in his country in the age wherein he lived, for to be superior to and overtop the rest. My lord of Arlington they make to be a person of meaner capacity, and a more limited genius than any of the five, but say his experiences supply the defect, and have acquired him especially a very great knowledge of foreign affairs. Last of all, they bring in Anthony Ashley-Cooper, the renowned earl of Shaftesbury; of whom they say he was by far the fittest person of any of them to manage a great enterprise, and so was as the soul to all the rest, being endued with a vast capacity, clear judgment, bold nature, and subtle wit, equally firm and constant in all he undertook; a constant friend but an implacable enemy; with many other expressions, such as his not being terrified either with the greatness or the multitude of crimes he judges necessary for his own preservation, or the destruction of others much to his lordship's dishonour, which is a clear argument he was not for their interest, and for which he is much beholden to them.

(Letter in the Secret Hist. of Whitehall, Lond., 1717, vol I., pp. 78, 79.)

177. The Habeas Corpus Act

(31 CAR. II, c. ii, 1679)

Statutes of the Realm

In the 39th and 40th clauses of the Magna Charta "are clearly contained the Habeas Corpus and the Trial by Jury, the most effectual securities against oppression which the wisdom of man has hitherto been able to devise." For centuries before, as for centuries after, the Great Charter, the abuses of judicial processes by the Crown led to complaint and discontent, which finally culminated in open rebellion. Again and again the kings broke their promises to abide by the law and to measure out that even-handed justice which the great documents of English history sought to secure for the people. At last, in 1679, the great Habeas Corpus Act was passed. It had radical defects, but these were remedied by the Bill of Rights (No. 190) and by an Act for More Effectually Securing the Liberty of the Subject (1812). The Habeas Corpus Act remains the basis of all legislation on its subject throughout English-speaking states.

An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas.

Whereas great delays have been used by sheriffs, gaolers, and other officers, to whose custody any of the king's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of Habeas Corpus to them directed, by standing out an Alias and Pluries Habeas Corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation:

II. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority thereof, that whensoever any person or persons shall bring any Habeas Corpus directed unto any sheriff or sheriffs, gaoler, minister, or other person whatsoever, for any person in his or their custody, and the said writ shall be served upon the said officer, or left at the gaol or prison with any of the under-officers, under-keepers or deputy of the said officers or keepers, that the said officer or officers, his or their under-officers, underkeepers or deputies, shall within three days after the service

thereof as aforesaid (unless the commitment aforesaid were for treason or felony, plainly and specially expressed in the warrant of commitment) upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and endorsed upon the said writ, not exceeding twelve pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be brought according to the true intent of this present act, and that he will not make any escape by the way, make return of such writ; and bring or cause to be brought the body of the party so committed or restrained, unto or before the Lord Chancellor, or Lord Keeper of the great seal of England for the time being, or the judges or barons of the said court from whence the said writ shall issue, or unto and before such other person or persons before whom the said writ is made returnable, according to the command therof; and shall then likewise certify the true causes of his detainer or imprisonment, unless the commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such court or person is or shall be residing; and if beyond the distance of twenty miles, and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then within the space of twenty days, after such delivery aforesaid, and not longer.

III. And to the intent that no sheriff, gaoler or other officer may pretend ignorance of the import of any such writ; be it enacted by the authority aforesaid, that all such writs shall be marked in this manner, per statutum tricesimo primo Caroli secundi regis, and shall be signed by the person that awards the same; and if any person or persons shall be or stand committed or detained as aforesaid, for any crime, unless for felony or treason plainly expressed in the warrant of commitment, in the vacation-time, and out of term, it shall and may be lawful to and for the person or persons so committed or detained (other than persons convict or in execution by legal process) or any one on his or their behalf, to appeal or complain to the Lord Chancellor or Lord Keeper, or any one of his Majesty's justices, either of the one bench or of the other, or the barons of the exchequer of the degree of the coif; and the said Lord Chancellor, Lord Keeper, justices or barons or any of them, upon view of the copy or copies of the warrant or warrants of commitment and de

tainer, or otherwise upon oath made that such copy or copies were denied to be given by such person or persons in whose custody the prisoner or prisoners is or are detained, are hereby authorized, and required, upon request made in writing by such person or persons or any on his, her or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same, to award and grant an Habeas Corpus under the seal of such court whereof he shall then be one of the judges, to be directed to the officer or officers in whose custody the party so committed or detained shall be, returnable immediate before the said Lord Chancellor or Lord Keeper, or such justice, baron or any other justice or baron of the degree of the coif of any of the said courts; and upon service thereof as aforesaid, the officer or officers, his or their under-officer or under-officers, under-keeper or underkeepers, or their deputy, in whose custody the party is so committed or detained, shall within the times respectively before limited, bring such prisoner or prisoners before the said Lord Chancellor or Lord Keeper, or such justices, barons or one of them, before whom the said writ is made returnable, and in case of his absence before any of them, with the return of such writ, and the true causes of the commitment and detainer; and thereupon within two days after the party shall be brought before them, the said Lord Chancellor or Lord Keeper, or such justice or baron before whom the prisoner shall be brought as aforesaid, shall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties, in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offence, for his or their appearance in the court of king's bench the term following, or at the next assizes, sessions, or general gaol-delivery of and for such county, city, or place where the commitment was, or where the offence was committed, or in such other court where the said offence is properly cognizable, as the case shall require, and then shall certify the said writ with the return thereof, and the said recognizance or recognizances into the said court where such appearance is to be made; unless it shall appear unto the said Lord Chancellor or Lord Keeper, or justice or justices, or baron or barons, that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justice or justices of the

peace, for such matters or offences for the which by the law the prisoner is not bailable.

IV. Provided always, and be it enacted, that if any person shall have wilfully neglected by the space of two whole terms after his imprisonment, to pray a Habeas Corpus for his enlargement, such person so wilfully neglecting shall not have any Habeas Corpus to be granted in vacation-time, in pursuance of this act.

V. And be it further enacted by the authority aforesaid, that if any officer or officers, his or their under-officer or underofficers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaid, or to bring the body or bodies of the prisoner or prisoners according to the command of the said writ, within the respective times aforesaid, or upon demand made by the prisoner or person in his behalf, shall refuse to deliver, or within the space of six hours after demand shall not deliver, to the person so demanding, a true copy of the warrant or warrants of commitment and detainer of such prisoner, which he and they are hereby required to deliver accordingly; all and every the head gaolers and keepers of such prisons, and such other person in whose custody the prisoner shall be detained, shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; and for the second offence the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office; the said penalties to be recovered by the prisoner or party grieved, his executors or administrators, against such offender, his executors or administrators, by any action of debt, suit, bill, plaint, or information, in any of the king's courts at Westminster, wherein no essoin, protection, privilege, injunction, wager of law, or stay of prosecution by non vult ulterius prosequi, or otherwise, shall be admitted or allowed, or any more than one imparlance; and any recovery or judgment at the suit of any party grieved, shall be a sufficient conviction for the first offence; and any after recovery or judgment at the suit of a party grieved for any offence after the first judgment, shall be a sufficient conviction to bring the officers or person within the said penalty for the second offence.

VI. And for the prevention of unjust vexation by reiterated commitments for the same offence; be it enacted by the authority aforesaid, that no person or persons which shall be delivered or set at large upon any Habeas Corpus, shall at any time hereafter be again imprisoned or committed for