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citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.
23. THE WRIT OF HABEAS CORPUS.
One of the most cherished rights of English and American citizens and one of the greatest bulwarks against an oppressive government is the right of Habeas Corpus. A good idea of the importance of this right and of the circumstances leading to its recognition in England whence it was brought to America may be gained from the following description by Professor C. C. Crawford:
"The right to personal liberty as understood in England," says Dicey, "means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.” Since the seventeenth century, the right to the writ of Habeas Corpus has been justly regarded as the most effective among the guarantees of personal liberty. In brief the legal process is this: a court of competent jurisdiction, upon application, issues a writ to an officer or to any person holding another in custody, commanding him to bring the prisoner before the court at once and show the reasons for his detention. If in the judgment of the court the charges do not justify such detention, the prisoner is discharged. But if they are considered adequate, and the offense is bailable, he is released upon furnishing suitable bail; otherwise he is remanded to prison. To the English people is due the credit for having created this most effective remedy for infringement upon personal liberty, although it has now been adopted with various modifications in nearly all civilized countries. The tendency of legal writers has been to obscure the origin and development of the writ of Habeas Corpus behind a mass of vague generalities, extolling the liberty of the English subject. In the absence of a careful and detailed history of the writ, it is
the purpose of this article to outline the principal changes through which it has passed to become the chief safeguard of personal liberty.
The right to the writ of Habeas Corpus is ascribed by many to the famous statute bearing that name passed by Parliament in 1679. But this act merely corrected certain important defects and abolished many abuses of a practice long known at Common Law. On the other hand, many legal writers have endeavored to find in articles 36, 39 and 40 of Magna Charta, a recognition of the principles involved in the writ of Habeas Corpus. Although the last two clauses declare that rights of justice and personal liberty will not be violated, they cannot as they stand be made to imply the writ of Habeas Corpus.
It was not until near the close of the Tudor period that the people began to demand more effective guarantees against the exercise of the arbitrary powers of the crown over personal liberty. Thus as early as 1592, at least, Habeas Corpus was established as an independent writ to test the validity of imprisonment. But as yet it afforded no relief when the commitment was made in consequence of a warrant from the crown or the Privy Council.
The Commons were not content to leave the matter in this state. In the course of a long and heated discussion, they passed a unanimous resolution on April 3, 1628, denying the right of the king, the privy council, or anyone, to imprison or detain a freeman without a legal warrant setting forth the reasons for detention and affirming the right of every man confined to prison, even under the express command of the king or the council to demand and obtain a writ of Habeas Corpus. This resolution was made the basis of an important part of the Petition of Right, passed by Parliament of May 27th. After quoting 39 Magna Charta and a portion of 25 Edw. II, C. 3, the Petition continues: "Divers of your subjects have of late been imprisoned without any cause shown, and when for their deliverance they were brought before your justices by your majesty's writs of Habeas Corpus
and there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but they were detained by your majesty's special command, signed by the lords of your privy council, and yet were returned back to their several prisons without being charged with anything to which they might answer according to the law. They, therefore, humbly pray your Most Excellent Majesty .that no free
man in any such manner as is before mentioned, be imprisoned or detained." After a vigorous protest, the king signed the petition on June 7, 1628, thereby giving it the force of law.
One of the charges preferred against Clarendon in the articles of impeachment of 1667 was, "That he hath advised and procured divers of his majesty's subjects to be imprisoned against the law thereby to prevent them from the benefit of the law." Whether this charge were true or false, it is certain that cases arose between 1660-79 in which the prisoner suffered great hardship because of unsettled points in the practice of Habeas Corpus, and it appears that the administration took advantage of these defects for political purposes. The Shaftesbury and the Jenks cases were certainly of this character.
The reasons for Shaftesbury's commitment to the Tower by the Lords on February 16, 1677, have been mentioned. On June 27, 1677, Shaftesbury was brought before the court of King's Bench by an Alias Writ of Habeas Corpus. The return stated merely that the prisoner was held in custody by order of the Lords for "high contempt committed against the House. In spite of a vigorous protest by Shaftesbury's counsel, the court held that since the commitment had been ordered by the king's highest court, the court of King's Bench had no jurisdiction in the matter. He was remanded and not released until late in the following February upon order of the Lords themselves. The case was clearly one of political oppression. It is significant that Shaftesbury was later the author of the Habeas Corpus Act as passed in 1679,
and it has been said, without definite proof, that he drafted the Act while in prison at this time.
A more direct influence upon the passage of the Habeas Corpus Act was brought to bear by the Jenks Case in 1676. Francis Jenks, a linen draper, and a member of the Com. mon Council of London, in a speech at Guildhall on June 24, 1676, charging the French with the destruction of England's foreign shipping, and calling attention to the danger to the Protestant religion, moved for a petition to the king to summon a new Parliament. It will be remembered that Parliament had not convened for fifteen months. While Jenks seemed to have voiced the sentiment of the majority present, his speech, which was really mild in tone, was reported in a greatly magnified form to the Lord Chief Justice. Upon June 28th, Jenks upon summons appeared before the king in council and was committed by that body to Gatehouse. For some time the keeper denied Jenks a copy of the warrant of commitment, as he said he had been forbidden to give him one. On the day following the arrest, Jenks' friends offered bail. The Secretary, however, refused to accept it until he had first laid the matter before the Council. The Lord Chief Justice was then petitioned for a writ of Habeas Corpus. That dignitary declining to hear precedents, refused to act during vacation of court. On June 30th the Chancellor declared that he had no authority to grant a writ of Habeas Corpus until the Chancery met on July 6th. No action was taken at that or any subsequent meeting. Later the Chancellor refused to grant a writ of Main-prise, on the grounds that it was an obsolete form. In the meantime the Council had met, but the Secretary informed Jenks that the king had said that the question of bail must come before the Council in the form of a petition. On July 11th, Quarter Session refused to take action as the case did not appear on the calendar. Finally, late in August, after the Secretary, Chancellor and Chief Justice had denied several other petitions on one excuse or another, the king ordered that bail be accepted.
The case caused much excitement in and out of Parliament. As early as April, 1668, a bill "to prevent refusal of Habeas Corpus" had been reported in the lower house and read the first and second time. In February, 1674, "An act for the speedy relief of persons detained for criminal matters," was passed by the Commons, but apparently no action was taken by the Lords. A similar fate awaited another bill in June, 1675. In March and April, 1677, the Lords themselves had originated and passed through the second reading, “An act for the better security of liberty of the subject," but it was dropped. Finally, in the spring of 1679, after a long series of compromises and joint conferences, the Habeas Corpus Act was passed by both houses and signed by the king on May 27th. On the day that the king signed the bill he dissolved Parliament. It has been suggested that pending the new election, Charles II had approved the measure to gain popular support.
According to the provisions of 31 Charles II, C. 2, any person detained for crime, "unless for treason and felony plainly expressed in the warrant of commitment," or anyone in his behalf, has the right to demand a writ of Habeas Corpus of the courts of King's Bench, Common Pleas, Chancery or Exchequer, or of any of the judges of the same, if the above courts are not in session. The existing law provided the remedy when the appeal was made to the court. But in case the appeal was made to the judges personally, the Habeas Corpus Act required that on view of a copy of the warrant of commitment, or the oath of two witnesses that such a copy had been denied, he issued at once a writ of Habeas Corpus to the one holding the prisoner in charge, commanding him within a period not less than three nor more than twenty days, depending upon the distance, to bring before the judge the body of the prisoner and show reasons for his detention. Within two days after the prisoner was presented, the judge was obliged to bail or remand him in accordance with the provisions of the law for the particular offense. If the judge to whom the proper demand was made refused to act in accord