Constitutional History of England, Henry VII to George II. Volume 3 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 3 of 3
Hallam, Henry
Constitutional history -- Great Britain
The remedies of the habeas corpus act are so effectual that no man
can possibly endure any long imprisonment on a criminal charge, nor
would any minister venture to exercise a sort of oppression so
dangerous to himself. But it should be observed that, as the statute
is only applicable to cases of commitment on such a charge, every
other species of restraint on personal liberty is left to the ordinary
remedy, as it subsisted before this enactment. Thus a party detained
without any warrant must sue out his habeas corpus at common law; and
this is at present the more usual occurrence. But the judges of the
king's bench, since the statute, have been accustomed to issue this
writ during the vacation in all cases whatsoever. A sensible
difficulty has, however, been sometimes felt, from their incompetency
to judge of the truth of a return made to the writ. For, though in
cases within the statute the prisoner may always look to his legal
discharge at the next sessions of gaol delivery, the same redress
might not always be obtained when he is not in custody of a common
gaoler. If the person therefore who detains any one in custody should
think fit to make a return to the writ of habeas corpus, alleging
matter sufficient to justify the party's restraint, yet false in fact,
there would be no means, at least by this summary process, of
obtaining relief. An attempt was made in 1757, after an examination of
the judges by the House of Lords as to the extent and efficiency of
the habeas corpus at common law, to render their jurisdiction more
remedial.[27] It failed however, for the time, of success; but a
statute has recently been enacted,[28] which not only extends the
power of issuing the writ during the vacation, in cases not within the
act of Charles II., to all the judges, but enables the judge, before
whom the writ is returned, to enquire into the truth of the facts
alleged therein, and in case they shall seem to him doubtful, to
release the party in custody, on giving surety to appear in the court
to which such judge shall belong, on some day in the ensuing term,
when the court may examine by affidavit into the truth of the facts
alleged in the return, and either remand or discharge the party,
according to their discretion. It is also declared that a writ of
habeas corpus shall run to any harbour or road on the coast of
England, though out of the body of any county; in order, I presume, to
obviate doubts as to the effects of this remedy in a kind of illegal
detention, more likely perhaps than any other to occur in modern
times, on board of vessels upon the coast. Except a few of this
description, it is very rare for a habeas corpus to be required in any
case where the government can be presumed to have an interest.
Public-domain text, read in full here on John Shaqi.
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