LIBERTY OF THE SUBJECT TRACED BY JOHN W. HUGILL, BARRISTER, CALGARY. II. THE HABEAS CORPUS ACT. 31 Car. II. c. 2 (1679). Entitled: An Act for the better securing the liberty of the subject and for prevention of imprisonment beyond the seas. Preamble: "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, for the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters." This preamble sufficiently indicates the abuses. which had led up to and necessitated statutory enactment to make the existing remedy for illegal detention in Criminal or supposed Criminal matters, incapable of evasion without severe penalty. Section 1. Provides that after service of the writ upon the officer having custody of the person on whose behalf the writ is taken out, the officer or keeper shall within three days or twenty days and no longer, depending upon the distance, bring up the body before the Court or Judge before whom the writ is returnable. Sect. 2. Provides the procedure during legal vacation. Sect. 3. Enacts that a person failing to pray a habeas corpus for two whole terms after his imprisonment, shall lose the right to a writ during vacation time in pursuance of the Act. Sect. 4. Prescribes the penalty attaching to any officer neglecting or refusing to obey the command contained in the writ, for the first offence £100; for the second offence £200 and loss of office. The said penalties to be recovered by the prisoner or party grieved, his executors or administrators. Sect. 5. Provides that any person set at large by writ of habeas corpus shall not be recommitted for the same offence, but by order of the Court, wherein he shall be bound by recognizance to appear, under penalty of £500, recoverable by the prisoner against the party recommitting contrary to this Act. "Any colourable pretence or variation in the warrant or warrants of commitment notwithstanding." Any persons committed for treason or felony plainly and specially expressed in the warrant of commitment are excluded from the benefits of the above referred to sections. Sect. 6. Makes provision for persons committed for treason or felony. He shall, if he requires it, be indicted during the first week of the term following his commitment, or else admitted to bail, unless it appears on affidavit that the witnesses for the Crown are not ready. If he is not indicted and tried in the second term after commitment, he shall be discharged from imprisonment. Sect. 7. Nothing in the Act shall extend to discharge out of prison any person charged in debt or other action or with process in any civil cause. Sect. 8. No person committed to any prison shall be removed therefrom into the custody of any other officer, unless by habeas corpus or some other legal writ. The penalties prescribed for infringement of this section are to be the same as set out in Sections 1 and 2. Sect. 9. Any Judge denying the writ of habeas corpus shall be liable to a penalty of £500 at the suit of the party aggrieved. Sect. 10. Habeas corpus may be directed and run into any County palatine, the Cinque Ports, or other privileged places within the Kingdom of England, Dominion of Wales, or town of Berwick upon Tweed, and the Islands of Jersey or Guernsey. Sect. 11. Prescribes heavy penalties for sending a subject of England, Wales or Berwick upon Tweed, beyond the seas, and enacts that any such imprisonment is adjudicated to be illegal. The offender is liable under this section to the injured party in treble costs or damages to the extent of not less than £400, besides subjecting him to the penalties of præmunire and to other disabilities. Hallam writes: "The great rank of those who were likely to offend against this part of the statute was the cause of this unusual severity." It is to be noted that the King cannot pardon the offence against this section, and it still remains one of the principal offences of præmunire recognized by English Criminal Law. Sect. 12. Act does not extend to persons under contract to go Overseas. Sect. 13. Excepts persons convicted of felony praying in open Court to be transported beyond the seas. Sect. 14. Imprisonment before June 1, 1679 excepted. Sect. 15. Provides for offenders to be sent out of the realm to be tried where their offences were committed. Sect. 16. Limitation of two years within which prosecution for offences against the Act may be made. Sect. 17. After the Assizes proclaimed prisoner sought to be removed must first be brought before Judge of Assize in open Court. Sect. 18. After Assizes are ended this Act is fully operative. Sect. 19. Provision allowing the defendants in a suit for offence against the Act to plead the general issue is now repealed and replaced by the Public Authorities Protection Act, 1893. Sect. 20. Persons committed as accessories to petty treason or felony shall not be removed or bailed otherwise than before this Act made, where such petty treason or felony is plainly and specially expressed in the warrant of commitment. "By this great statute the old practice of the law was freed from all difficulties and exceptions." (Green's Hist., Vol. 8, p. 193.) In so far as the Act in effect imposed upon the judges, under severe sanction, the duty of protecting personal liberty in the case of criminal charges and of securing speedy trial upon such charges when legally framed, the above referred to statement may be accepted without question. The Act undoubtedly achieved the object it was primarily intended to attain, viz.: to keep the executive within and subject to the Law. It left the practice in regard to persons imprisoned for debt or on civil process unaffected, i.e., the writ was in such cases available as heretofore at Common Law to test the legality of the detention. Further legislation became necessary as a result of the experience of the 18th century. The Counties of Cities Act, 1798, provided for the removal of an indictment or inquisition from one county to another. The Habeas Corpus Act, 1803, set at rest the doubts concerning the issue of a writ of habeas corpus for bringing up prisoners for trial or examination before Court Martial, Commission of Bankrupt, Audit of Public Accounts or others acting under warrant from His Majesty. The Act of 1804 provided that any Judge of the Superior Courts in England or Ireland may award writs of habeas corpus for bringing prisoners before Courts of Record to be examined as witnesses. It was not, however, until the year 1816 that legislation was passed for more effectually securing the liberty of the subject in cases not covered by the Act under review. This is the Habeas Corpus Act, 1816. Its preamble is self explanatory: "Whereas the writ of habeas corpus hath been found by experience to be an expeditious and effectual method of restoring any person to his liberty who hath been unjustly deprived thereof, and whereas extending the remedy of such writ and enforcing obedience thereunto and preventing delays in the execution thereof, will be advantageous to the public; and whereas the provisions made by an Act passed in England in the thirty-first year of the reign of King Charles the Second, instituted 'An Act for the better securing the Liberty of the Subject and for Prevention of Imprisonment beyond the Seas,' and also by an Act passed in Ireland in the twenty-first and twenty-second years of His present Majesty, instituted An Act for better securing the Liberty of the Subject' only extend to cases of commitment or detainer for criminal or supposed criminal matter.'" In substance the Act then provides: Sect. 1. That a writ of habeas corpus in favour of a person restrained of his liberty (otherwise than for some criminal or supposed criminal matter, except persons imprisoned for debt or by civil process) shall be issued in vacation time. Sect. 2. Provides the punishment for non-obedience to such writ as for contempt of Court. Sect. 3. Removes any doubt that judges may enquire into the truth of facts contained in the return of the writ. Sect. 4. The Court may controvert the truth of the return. Sect. 5. Declares where the writ may arise. The provision: "And also into any port, harbour, road, creek or bay, etc., was intended to meet doubts existing on the applicability of habeas corpus in cases of illegal detention on board ship, which had been raised owing to a case of detention on a foreign ship in an English port." Sect. 6. Enacts that the process of contempt may be awarded in vacation against persons disobeying writs of habeas corpus in cases coming within the statute under review. It is to be observed that the Act of Charles II. made no provision in this respect. The omission of this remedy for infringement of its provisions was undoubtedly a serious defect. It is conceivable that under certain circumstances, severe as the penalty might appear from a monetary point of view, the rank of the persons against which it is conceded the penalties were aimed, would in many instances ensure the payment of the fines or damages without hardship. The prospect of imprisonment for contempt however, would, it is submitted in such cases, give the required pause for reflection before refusing obedience to the writ. It is interesting to note that while the appropriate writ at Common Law for cases other than criminal, or supposed criminal matters, was de homine replegiando, during the latter part of the 18th century the habeas corpus ad subjiciendum was apparently resorted to: Vide Somerset's case, 1771-1772, 20 St. Tr. 1. The effect of these statutes is primarily to keep the Courts always open for the issue of the writ. It is available to put an end to all forms of illegal detention in public or private custody. It was used in 1839 to obtain the release of persons sentenced in Canada for participating in the Rebellion of 1837, while these prisoners were being conveyed throughout England in custody. Leonard Watson (The Canadian Prisoners' Case, 1839), Ad. & El. 731; 48 R. R. 659. Their detention was held to be legal. In 1861 a writ of habeas corpus issued from the Court of Queen's Bench to Canada. Cockburn, C.J., in this case in part said: "The Superior Courts of Westminster have jurisdiction at Common Law to issue a writ of habeas corpus ad subjiciendum to any part of the Dominion of the Crown of England: We have considered this matter, and the result of our anxious deliberation is that we think the writ ought to issue. We are at the same time sensible of the inconvenience that may result from the exercise of such a jurisdiction. We are quite sensible that it may be felt to be inconsistent with that higher degree of Colonial independence, both legislative and judicial, which has happily been carried into effect in modern times; at the same time it is to be observed that in establishing local legislation and local judicial authority, the legislature has not gone so far as expressly to abrogate any jurisdiction which the Courts at Westminster Hall might possess with reference to the issuing of a writ of habeas corpus into any part of Her Majesty's Dominion. We find that the existence of that jurisdiction in these |