petual excise of all beer and other liquors; a tax which had been introduced by the Long Parliament for short periods, yet not without being charged with relieving the landowners at the expense of the community. The act which affected the abolition of the feudal tenures, also imposed the duties which were its compensation. It is entitled “An Act for taking away the Court of Wards, and Liveries, and Tenures in Capite and by Knight's Service, and Purveyance, and for settling a Revenue on His Majesty in lieu thereof." It adopted the intermission of that court by the Long Parliament, on the 24th of February, 1645, as the date of the abolition; and it enacted “that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king's majesty, or of any other, by knight service, and all other gifts, grants, charges, or incidents arising for or by reason of wardship, liveries, primer seisins, or ousterlemains, be taken away and discharged from the 24th of February, 1645, and that all fines for alienations, and also aid pur fil marier, and pur fair fitz chevalier, be taken away and discharged as from the same day.” All tenures of land held of the king or of any


person or persons, bodies politic or corporate, were declared to be turned into free and common socage, discharged from the feudal charges and incidents, from the 24th day of February, 1645; and all future grants of lands by the king to be in free and common socage." But it is declared that the act should not take away copybold tenures, frank-almoign, nor the honorary services of grand-serjeantry.

The act consulted the principles of human nature by transferring the guardianship of children under twenty-one, and not married at the time of their father's death, and the management of their lands and property, to guardians to be appointed by the father, by deed in his lifetimne, or by his will.

It was enacted that henceforth “no money or other thing should be paid or levied, in regard of any provision, carriages, or purveyance for the king, his heirs or successors ; that no person, under warrant, commission, or authority, under the great seal or otherwise, by color of making provision or purveyance for the king or queen, their children or household, should take any timber, fuel, cattle, corn, grain, malt, hay, straw, victual, cart, carriage, or other thing whatever, of any of the subjects of the king, without the full and free consent of the owner, had and obtained without menace or enforcement; nor summon, warn, take, use, or require any of the king's subjects to furnish or find horses, oxen, or other cattle, ploughs, wains, or other carriages, without such full and free consent; that no preëmption should be allowed or claimed on behalf of the king, queen, or children of the royal family, in market or out of market; but forever after it should be free to all the king's subjects to sell, dispose, or employ their goods to any other persons as they list.”

But this statute did not take away that right of the crown called escheat, by which it succeeds to the lands of persons who die without heirs, or whose heritable blood has been attainted by treason or felony, and it still remains a principle of the constitution, that the crown, as parens patriæ, is entitled to the property of persons who die leaving no heirs. But in modern days that right is possessed with no advantage to the crown, because its right is surrendered to the public use; and with little advantage to the public, because the Government is always open to petitions for the disposal of the property in favor of persons having equitable or moral claims to it.

Thus ended the oppression of the feudal system in England, which had, for ages, rested like an incubus upon the people. Whatever struggles might yet remain, the spirit of individual freedom was at length established, and we cannot wonder that the same reign which saw the final abolition of this system of obsolete autocracy should have also seen the passage of the Habeas Corpus Act.

HABEAS CORPUs is an ancient English writ which has been used for a variety of purposes from the remotest antiquity. It is addressed to a sheriff or other officer, and commands him to have the body of the person named at a certain place and time. When all writs were in Latin, the characterizing words of this writ were ut habeas corpus, and the name has long survived the use of these words in the writ. One of the purposes for which it was used was

to recover freedom which had been wrongfully taken away. Personal liberty was always asserted by the common law from its earliest ages; and it was always assailed by kings who would be tyrants, with an earnestness proportioned to their tyranny. Hence it became necessary to declare in the most solemn manner in Magna Charta, that “no man shall be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land ;” and this clause, more than any other, has given to that instrument the name of the palladium of English liberty, a name which is equally deserved by the writ of habeas corpus. For, on the one hand, the great charter did not enact this as a new rule of law, but only declared it to be the law of the land; and on the other, its force and influence gradually faded, in despite of repeated formal confirmations; and this law became actual and operative only by means of the habeas corpus. This writ was issuable from the king's bench, and it was used to protect or restore liberty, by bringing the prisoner before the court, whose duty it was to order his immediate discharge if he were not restrained of his liberty according to law. But it was evaded by courts and sheriffs who were disposed to support royal or ministerial usurpations; and it became so powerless that early in the reign of Charles I. the court of king's bench formally decided that they had no power to release any person imprisoned without any cause assigned, if he were imprisoned by the express command of the king, or by the lords of the privy council. The Petition of Right asserted the illegality of this decision, and declared that “no freeman should be imprisoned or detained without cause shown, to which he may make answer according to law.” But the means of enforcing this rule were still imperfect, and personal liberty was still violated; and by 16 Charles I., ch. 10, various provisions were enacted, intended to make the writ of habeas corpus more effectual. But this was not enough. The judges still continued to refuse the writ at their pleasure, or issued it only in term time; and prisoners were sent to distant jails, where sheriffs and jailers refused to obey it; or if the party imprisoned were brought before an examining court, his liberty was still withheld on frivolous pretences. At length, in the thirty-first year of the reign of Charles II. (1679), what is now understood by the Habeas Corpus Act was enacted. It consisted of a variety of provisions, devised with so much skill and so well adapted to give each other mutual support, that it may safely be asserted that personal liberty must be safe so long as this law remains in force. Evasion of it in England is almost impossible; in the United States it was till recently believed to be entirely so; and it can be successful only by a positive and open violation of the law, or by a distinct denial of the writ. We owe this admirable law-which is the protection of the innocent, not the defence of the guilty-to Lord Shaftesbury, who, when he was appointed lord chancellor, had received no legal education whatever, and made no pretence to any knowledge of technical law; nor could his best friends, then or since, claim for him the credit of any especial regard for liberty, or any moral excellence whatever. It happened, however, that his personal purposes at the moment were such as to induce him to make this law as practical and as effectual as possible; and he brought to this object all the resources of his genius and experience, and by their help succeeded in giving to the act an efficiency which the lawyers who had been at work upon it for many generations had never been able to impart.

The English statute has been copied in the United States without essential change; the variations from it being only such as would, in the opinion of various legislatures, make its provisions more stringent, and the security it gives to liberty more certain and available. The provisions of the statutes of habeas corpus, now in force in the different States, may be stated generally thus :

1. The writ commands the sheriff, or other person to whom it is directed, to have the body of the person who is said to be restrained of his liberty forthwith before the justice issuing it, or some other tribunal competent to try the questions the case may present; and to summon the person restraining the alleged prisoner to be there also, and bring with him the cause of the restraint, that all parties may then and there submit themselves to whatever may be lawfully adjudged and ordered in their behalf. The language varies in different statutes which give the form of the writ; but it is always substantially as above.

2. The writ must be granted, as of right, by any of the justices of the higher courts, and, in their absence or inaccessibility, by any

of those of a lower court, down to justices of the quorum; the law covering in this respect a wide range, so as to insure to every applicant some one from whom this redress or remedy may come.

3. It must be granted at any time when it is prayed for, whether a court be sitting or not.

4. It must be granted either to the party himself restrained of his liberty, or to any one applying for him; and if his name be unknown, the best description which can readily be given is sufficient.

5. The application must be in writing, and must be verified by the oath of the applicant.

6. The sheriff or other officer to whom it is directed must render prompt obedience and make immediate service, and return the writ forthwith, with a full statement of his doings.

7. It must be returned before the proper magistrate at chambers, if a court to which it is made returnable be not then in session.

8. Upon the return, the alleged prisoner being present, the case is tried; and, unless sufficient cause for his imprisonment is shown, he is ordered to be discharged at once.

9. If not wholly discharged, the court or magistrate may order him to be discharged on giving reasonable bail, if he be held for any bailable offence or cause.

10. In some of the States it is provided that the writ may not issue if the party restrained be imprisoned for crime, or in execution civil or criminal, and by lawful warrant. In others these exceptions are not made, but if facts like these appear on trial the prisoner is remanded.

11. In general, after a party has been discharged on habeas corpus, he cannot again be imprisoned or restrained of his liberty for the same cause.

12. The issuing of the writ by the magistrate applied to, and prompt and full obedience to it by the officer or other person to whom it is directed, are secured by heavy penalties; and also by the fact that any applicant to whom the writ is refused by one magistrate may apply to another, and the number of those to whom he may thus resort is so large that it is hardly possible for them all to be corrupted, or for any reason indisposed to render due obedience to the law.

« ForrigeFortsett »