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
[22] In this session (Feb. 14) a committee was appointed to inspect
the laws, and consider how the king may commit any subject by his
immediate warrant, as the law now stands, and report the same to the
house, and also how the law now stands touching commitments of persons
by the council-table. Ralph supposes (p. 255) that this gave rise to
the habeas corpus act, which is certainly not the case. The statute 16
Car. I, c. 10, seems to recognise the legality of commitments by the
king's special warrant, or by the privy council, or some, at least, of
its members singly; and I do not know whether this, with long usage,
is not sufficient to support the controverted authority of the
secretary of state. As to the privy council, it is not doubted, I
believe, that they may commit. But it has been held, even in the worst
of times, that a warrant of commitment under the king's own hand,
without seal, or the hand of any secretary, or officer of state, or
justice, is bad. 2 Jac. II. B. R. 2 Shower, 484.
[23] In the _Parliamentary History_, 845, we find a debate on the
petition of one Harrington to the Commons in 1677, who had been
committed to close custody by the council. But as his demeanour was
alleged to have been disrespectful, and the right of the council to
commit was not disputed, and especially as he seems to have been at
liberty when the debate took place, no proceedings ensued; though the
commitment had not been altogether regular. Ralph (p. 314) comments
more severely on the behaviour of the house than was necessary.
[24] 31 Car. II. c. 2.
[25] The puisne judges of the common pleas granted a habeas corpus,
against the opinion of Chief-Justice Vaughan, who denied the court to
have that power. Carter's _Reports_, 221.
[26] The court of King's Bench directed a habeas corpus to the
governor of Jersey, to bring up the body of Overton, a well-known
officer of the commonwealth, who had been confined there several
years. Siderfin's _Reports_, 386. This was in 1668, after the fall of
Clarendon, when a less despotic system was introduced.
[27] See the Lords' questions and answers of the judges in _Parl.
Hist._ xv. 898; or Bacon's _Abridgment_, tit. Habeas Corpus; also
Wilmot's _Judgments_, 81. This arose out of a case of impressment,
where the expeditious remedy of habeas corpus is eminently necessary.
[28] 56 G. III. c. 100.
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