Page images
PDF
EPUB

56

Albany Law Review

(Vol. 42 affections, the corrupt justice would sign as the cause of release the reason that the charge amounted only to a "Suspicion of Felony. . . ." To remedy this situation, and to satisfy the demands of the sixteenth century citizen outraged by the escalation of crime," it was enacted in 1554 that:

[No Justice or Justices of Peace shall let to Bail or Mainprise any such Person or Persons, which for any Offense or Offenses by them or any of them committed, be declared not to be replevised or bailed, or be forbidden to be replevised or bailed by the Statute of Westminster primer..

And furthermore, That any Person or Persons arrested for Manslaughter or Felony... being bailable by the Law, shall not... be let to Bail or Mainprise by any Justices of Peace, if it be not in open Sessions, except it be by two Justices of Peace at the least, whereof one to be of the Quorum, and the same Justices to be present together at the Time of the said Bailment or Mainprise

[ocr errors]

Whereas 3 Henry VII, c. 3 left some doubts as to what was meant by the phrase "by the law," and 1 Richard III, c. 3 seemed to allow complete discretion, the above statute made it clear that the Statute of Westminster I was the definite standard to be followed by the justices of the peace.

III. THE UNRESOLVED DEFECT

Although during the period from the fourteenth through the sixteenth centuries the Crown and Parliament intervened positively to reform the local administration of bail, their more progressive attitude did not interfere with their other governmental policies. Beginning in the latter part of the fourteenth century, statutes, ordinances and proclamations, that made new offenses punishable by imprisonment, forbade bail or mainprise in such cases. In the late fourteenth century and throughout the fifteenth century, such prohibitions particularly characterized enforcement of the Statute of Labourers. The first statute of this class was enacted in 1360.130 It was followed by many similar enactments." The Statute of 1444132 which required bail upon reasonable sureties, excluded from its broad requirement seven categories of prisoners, including "[v]agabonds refusing to serve according to the form of the statute of labourers. . . ."

97133

In 9 W. HOLDSWORTH, A History of English Law 223 (1965).

11 Phil. & M., c. 13 (1554). The act also required that the justices conduct preliminary hearings into the manslaughter or felony before letting the individual to bail or mainprise; and to record the material facts, and together with the notice of bailment, to deliver them to the next general gaol-delivery. A statute enacted the following year, 2 & 3 Phil. and M., c. 10, required preliminary examinations regardless of whether an individual was to be let to bail or mainprise. (The two-judge rule was abrogated by the Inditable Offenses Act of 1848.)

23 Edw. 3, Statutes of the Realm 307-09. See also id. at 311, 312, 327, 350, 366-67, 388. 1334 Edw. 3, c. 9.

11 12 Rich 2, c. 9 (1388); 2 Hen. 6, c. 18 (1423); 6 Hen. 6, c. 3 (1427); 11 Hen. 7, c. 22 (1494); 6 Hen. 8, c. (1514).

See text accompanying notes 114-16 supra.

123 23 Hen. 6, c. 9.

[ocr errors]

1977]

In 1496

[blocks in formation]

and 150313 Parliament, in its defense appropriations, inserted a clause which provided that if anyone attempted to retake goods distrained by the tax collector, upon the certificate of the collector the accused was to be committed to ward or arrested and committed to prison without bail or mainprise at the discretion of the justice of the peace.

134

Orders to imprison without bail or mainprise were also issued by the Privy Council. This power was exercised throughout the sixteenth century into the early seventeenth century." The Privy Council's power to imprison was the source of much discontent in the second quarter of the seventeenth century, and was eventually brought under control.""

The Tudor and Stuart monarchs used this power unsparingly in the form of royal proclamations. For example, on February 17, 1554, Mary ordered the deportation of all "evil-disposed persons, being born out of her highness' dominions . . . fleeing from the obedience of the princess or rulers under whom they be born . . ." and empowered local ministers to arrest any who should disregard her proclamation, and confine them "without bail or mainprise till her grace's pleasure or her council's be signified upon them for the further ordering of the said person or persons. . . .

19139

Thus, although the right to bail was on a progressive course, it existed in a rather precarious state. As with other statutory and common law rights, it was subject to the volitions of Parliament and the king. Its effectiveness was further undercut by the monarch's power to issue royal proclamations. Although this weakness was not remedied in the seventeenth century, and indeed remains a fault in the system of bail today, the mechanism was ad

15 Rot. Parl. 516.

135 5 id. at 534.

In 1553, for example, the Council commanded Mr. Servington and others to apprehend William Andrewe and William Smyth of Ramsey, and to commit them without bail or mainprise until "they be hereafter further enquired of and otherwise ordered by Conseill." 4 Acts of the Privy Council (1552-1554) at 314. Later that same year, Sir Christopher Haydon, who had been authorized to seek and arrest those using "lewd talke" in Norfolk, was further directed to commit the same to gaol without bail or mainprise until the next assize. 4 id. at 365.

See, eg., 10 id. (1577-1578) at 223, 228-29; arts. X, XIV, Resolutions in Council Touching the Government of the Middle Shires (1617).

13 See Darnel Case, 3 ST. TR. 1 and parliamentary proceedings thereafter; 16 Car. 1, c. 10 (1641).

132 TUDOR ROYAL Proclamations, pl. 404, at 31-32 (P. Hughes and J. Larkin eds. 1969). Queen Mary issued proclamations containing similar clauses in her executive order prohibiting the preaching, reading, interpreting, teaching or writing of any matter of religious doctrine without the queen's special license, id. pl. 390, at 5; in her proclamation regulating the wool trade, id. pl. 397, at 19-20; and in her order for the courteous treatment of Philip's retinue. Id. pl. 405, at 33-34. Further executive orders were issued by Phillip and Mary, with similar provisions, for the enforcement of the statute against heresy, id. pl. 442, at 57-60, and for the capture and imprisonment of navy deserters. Id. pl. 438, at 84. The practice was continued in the early years of the Stuarts. 1 STUART Royal ProclamaTIONS pl. 28, at 53-56, pl. 53, at 114-17, pl. 68, at 147-48, pl. 93, at 203-06, pl. 146, at 329-36, pl. 168, at 374-80, pl. 247, at 583-85 (J. Larkin and P. Hughes eds. 1971), as well as throughout the interregnum. 1 ACTS AND Ordinances of the Interregnum 1642-1660, at 23, 47, 56, 270, 320, 408, 453, 469, 581, 647, 666, 955, 988, 1059, 1066, 1134 (C. Firth and R. Rait eds. 1911); 2 id. at 23, 126, 349, 355, 389, 392, 411, 455, 513, 548, 621, 700-01, 86869, 899, 937, 1227, 1258, 1261, 1264, 1289, 1296, 1310, 1314, 1319, 1339, 1451-52, 1458.

58

Albany Law Review

[Vol. 42 vanced a giant step in that century. The century produced three great statutes (the Petition of Right, the Habeas Corpus Act, and the Bill of Rights) which gave form to the statutory and constitutional pattern, and which were later to help fashion the American Constitution and Bill of Rights.

IV. THE SEVENTEENTH CENTURY

During the seventeenth century, the state of constitutional law in England was dynamic. The follies of the Stuart government goaded Parliament into a posture supportive of individual rights. The steps toward personal liberty were small; each was meant only to correct the problem at hand. The English constitutional development method was to avoid indulgence in speculative jurisprudence, and to maximize its efforts in correcting actions which impinged immediately on individual rights.

The first great document of the century, the Petition of Rights, grew out of events occurring during the reign of Charles T. Charles had agreed to aid Louis XIII in suppressing Protestant rebels in LaRochelle and to grant English Catholics liberty to worship in return for a guarantee of marriage to Henrietta Maria of France. The agreement met fierce opposition in the Parliament of 1626. Parliament was prorogued without voting financial support for the King. Charles, however, continued to collect the dues, and also imposed a forced loan. Those who refused to pay were imprisoned."" Five knights imprisoned for refusing to pay the illegal assessments moved on a writ of habeas corpus, directed to the warden of the fleet, to show cause why they were imprisoned." The request was granted, however the return stated only: "Whereas heretofore the body of Sir Thomas Darnel hath been committed to your custody, these are to require you still to continue him; and to let you know that he was and is committed by the special command of his maj. esty...."142

Sergeant Bramston, counsel for one of the knights, requested that bail be granted, arguing that the writ of habeas corpus is the only means by which to secure liberty if the cause of imprisonment is unjust. “But that cannot be done upon this return," insisted the barrister, "for the cause of the imprisonment of this gentleman at first is so far from appearing particularly by it, that there is no cause at all expressed in it."3 Bramston submitted that the

C. HILL, A CENTURY OF REVOLUTION 54.

"Five Knights' Case" or "Proceedings on the Habeas Corpus" brought by Sir Thomas Darnel et al. (1627), 3 ST. TR. 1.

142 Id. at 3. Each of the five returns was similar.

113 Id. at 6-7. Such action was repugnant to statute law, argued the barristers. They pointed to 25 Edw. 3, c. 4 (1350) which provided:

no men from henceforth shall be taken by Petition or Suggestion made to the King or his Council, but by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deeds be done, in due Manner, or by Process by Writ original at Common Law; nor that none be out of his Franchise, nor of his Freehold, unless he be duly brought to Answer, and forejudged by the same by the Court of Law; and if any Thing be done against the same, it shall be redressed and holden for none.

1977]

The Right to Bail

69

59

charge, coming before trial and conviction, was simply an accusation, and thus bail should be allowed.""

Attorney General Heath conceded that the use of the sovereign power to imprison by special command would mean that many might suffer wrongful imprisonment, but argued that was not reason enough for all who were imprisoned by command of the King without more specific charge to be delivered. Heath suggested that the King's position was best for balancing the interests of society and of the individual." The court adopted this reasoning" and remanded the prisoners to custody. The prisoners continued in

They also pointed to 42 Edw. 3, c. 3 (1368), which, because of accusations induced by revenge and not for the well-being of the King and realm, provided that “no man shall be put to answer without Presentment

"If this return shall be good, then his imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually .” 3 Sr. Tr. 1, 8 (1627). Coke used this argument during the debates in Parliament following the trial. See id. at 130 (1628).

Heath framed the argument as follows:

No doubt but the King's power is absolutely over his coins; if then he shall command his coin shall be turned to brass or leather, I confess it were inconvenient; but if the king would do it, the answer that I can make is, that he would not undo the kingdom: but can your lordships hinder it, as an inconvenience, if he would do it? The Cinque Ports are free for traffick for all his subjects; but the king in his cabinet understands there is danger of war to come upon his kingdom, thereupon he shuts the ports, that no man can go out; shall the merchant say this is injustice in the king? . . . [T]he king may pardon all traitors and felons, and if he should do it, may not the subject say, If the king do this, the bad will overcome the good? But any say, The king cannot do this. Id. at 45.

10 The court stated,

[T]he king hath done it, and we trust him in great matters, and he is bound by law, and he bids us proceed by law, as we are sworn to do, and so is the king; and we make no doubt but the king, if you seek to him, he knowing the cause why you are imprisoned, he will have mercy; but we leave that. If in justice we ought to deliver you we would do it; but upon these grounds and these Records and the Precedents and Resolutions we cannot deliver you, but you must be remanded.

Id. at 59. The opinion proves to be more ambiguous than one would imagine at first. The decision was to "remand" the prisoners. Most considered this to mean that the knights would thus remain in prison indefinitely. When judges remanded they could issue either a remittitur prisonae praedictae, to signal a final judgment, or a remittitur quousque secumdum legem deliberatus fucrit, indicating that the remanding order was temporary. The latter judgment was used so that the judge would have time to be advised. When the judges appeared before Parliament to answer queries on their opinion (they asked that their testimony not be recorded in the Journal, which Parliament granted), Justice Whitelocke said of the judgment, "I did never see nor know by any record, that upon such a return as this, a man was bailed, the king not first consulted... ." Id. at 161. Justice Jones answered explicitly, "[W]e remitted them quousque." Id. at 162. Justice Dadderidge also noted that in this case "a remittitur was granted... that we might take better advisement." Id. at 163. And finally Chief Justice Hyde said, "[W]e do never bail any committed by the king, or his council, till his pleasure be first known." Id. at 164. On the basis of the testimony of the justices before the Parliament, Helen, in THE PETITION OF Right 3-4 (1917), suggests that the remanding order was not meant to be a final decision. The testimony is dubious when considered in light of the written opinion of the court, however. The final phrase of the court's opinion, quoted above, refers to "records and precedents" which supplied no proofs for the claim that the king or council must be advised before granting bail in such cases, but were used rather to display the fallacy of the precedents used by the petitioners to back the claim

60

Albany Law Review

[Vol. 42 custody until January, 1628, when the King in council ordered them released. Three months later, because of the aggravated financial state of the Crown, the King was compelled to summon a parliament. Many of those who had suffered confinement because of their refusal to defray the unconstitutional appropriations were elected to Parliament."" When the business of organization was consummated, Parliament moved immediately to the consideration of grievances. Among the grievances presented were complaints against the billeting of soldiers, establishment of loans by benevolence and Privy Seal, imposition of martial law, and confinement without cause shown.14

After heated debates, on April 1 the Commons passed three resolutions in support of the liberty of the subject:

I) That no Freeman ought to be detained or kept in prison, or otherwise restrained by command of the King or privy-council, or any other, unless some cause of the commitment, detainer, or restraint be expressed, for which by law he ought to be committed, detained or restrained.

II) That the Writ of Habeas Corpus may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained, though it be by the command of the King, the privy-council, or any other, he praying the same.

III) That if a Freeman be committed or detained in prison, or otherwise re

that "when the king hath committed one, and expressed not the cause, the court hath delivered the party ." In the words of the court,

[Y]ou will see the contrary concluded in every case that you have put: where the cause of the commitment hath been expressed, there the party hath been delivered by the court, if the case so required; but where there hath been no cause expressed, they have been remanded; or if they have been delivered, they have been delivered by the king's discretion

3 ST. TR. 1, 53.

147 Of the seventy-six persons held for refusing to submit to the loan, twenty-seven were elected to Parliament. J. TANNER, English CONSTITUTIONAL Conflicts of the Seventeenth Century 61 (1928).

"The proceedings of the Parliament of 1628, relating to the liberty of the subjects, follows the Darnel case in 3 COBBETT'S STATE TRIALS 59 (T. Howell ed. 1816). Sir Thomas Wentworth, one of those imprisoned for refusing to pay the illegal levy, opened the debate with a thundering speech which established the tone in which the debates would proceed.

[Projectors... have extended the prerogative of the king beyond the just symmetry, which maketh the sweet harmony of the whole.... They have introduced a Privy Council, ravishing at once the spheres of all ancient government, imprisoning us without either bail or bond; they have taken from us, what? What shall I say indeed, what have they left us? Id. at 61-62. Sir Francis Seymour continued by acknowledging that no good subject would refuse willingly to lay down his life for the good of king and country; however "he is no good subject but a slave, that will let his goods be taken against his will, and his liberty against the laws of the kingdom." Corbett, Parliamentary Debates 231. Quoting St. Paul in the Acts of Apostles, Sir Edward Coke, the intellectual leader of the House, at this time in his late seventies but at the height of his career, observed simply that "[i]t is against reason to send a man to prison without a cause." 3 ST. TR. 1, 69 (1628). Mr. Creswell observed that the laws of England are primarily concerned with the liberty of the individual. Creswell reasoned that since the king had no absolute right over private property, then it followed that the right to restrain the person without cause shown did not exist in the Crown. "[T]o have the body imprisoned without cause declared ." argued the legislator, "is contrary unto, and against the law of nature, and therefore not to be inforced by the sovereign upon his subjects." Id. at 71-73.

« PreviousContinue »