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The Liberty of the Subject.





&c. &c. &c.



HE motion, which I now rise to make, has for its object, the improvement of the remedy by writ of habeas corpus in those cases of illegal imprisonment, which are not affected by the statute of 31st Car. II. which is entitled “ An Act for the better securing the liberty of the subject,” but which is more generally known by the name of the Habeas Corpus Act. That Act, Sir, is confined to cases of commitment or detainer for criminal or supposed criminal matter, and leaves the remedy for all other cases of illegal restraint, in the same inadequate state, as it was previous to the passing of that Act. Writs of Habeas Corpus, originally only issued out of the courts of Chancery and King's Bench, except on behalf of persons entitled to privilege in the other courts. But the statute 16th Car. I. which was made expressly to regulate the proceedings of the Privy Council, and to abolish the StarChamber ; having mentioned the Court of Common Pleas as co-ordinate with the Court of King's Bench with regard to such writs, that court has ever since issued writs of Habeas Corpus, in all cases of illegal imprisonment. The real benefits received in consequence of the statute 31st Car. II. and the interest excited by the great struggles that took place previous to its passing, have most likely occasioned a generally received, though most erroneous, opinion to prevail, that the remedy is now complete for preventing unjust and illegal confinement. My object, Sir, is to extend the principle of that Act, to all the omitted cases; I wish to give to all the courts in Westminster Hall, in term time, and to all the judges of them, in vacation, the power to issue and enforce obedience to writs of Habeas Corpus in all cases of illegal imprisonment; and although the return to the writ may show a legal cause of imprisonment, to give power to enquire into the truth of the facts stated in such return, and to do justice, according to the result of such examination.

The judges of the Court of King's Bench have long exercised a power of issuing writs in such cases in vacation, but have no power to punish in vacation, disobedience to their writ; indeed that power is even omitted in the statute of 31st Car. II. The Court of Chancery has been stated by very great authorities to possess the power of issuing such writs in vacation, but Lord Chancellor Nottingham, in the well known case of “ Jenks,” refused to issue the writ in vacation, no precedent, notwithstanding the most diligent researches, being found, to warrant the application. In the cases of infants and lunatics, the Lord Chancellor does interfere for their protection in vacation, but that is not by means of the writ of Habeas Corpus at common law, but in consequence of the especial power,

delegated to him in those cases.

But the defect I chiefly wish to remedy, is the want of power to examine into the truth of the facts stated in the return of the writ of Habeas Corpus. Can it, Sir, be endured, that a return valid in law, though utterly unfounded in fact, shall be conclusive as to the discharge of the prisoner ? An action certainly lies for a false return; an action against the person, in whose power the injured party is detained, and who can, in the great majority of cases, where the writ is sued out, send him to distant parts of the world and into the most pestilential climates! Sir, unless a speedy remedy is given in such cases, the injured party is absolutely remediless. But in no case can a compensation in money be an adequate com. pensation for the loss of liberty,

Sir, in the year 1758, a bill to remedy these evils was introduced into this house by Sir John Cust, who afterwards filled that chair, the dignity of which you so eminently support; it passed this house after very acrimonious debates, but was rejected, and I think properly rejected, in the House of Lords: I think, it was properly rejected, because it went far beyond the mischiefs complained of, and instead of enlarging the powers of the judges, tended to degrade their judicial functions. But, Sir, it was not rejected until after very strong debates ; and so much violence was produced by the discussion, that two noblemen, who at dif, ferent periods of their political lives were most closely connected (Lord Temple and Lord Lyttleton,) were required by the house to declare upon their honor, " that they would not pursue any further resentment upon the occasion of the words that had passed between them.” It is mentioned, Sir, by a cotemporary writer, as a circumstance almost miraculous, that Lord Mansfield spoke for near two hours and a half in the course of one of the debates ; a circum

stance you, Sir, would now think by no means extraordinary. Whilst the bill was pending in the House of Lords, ten questions were, on the motion of Lord Hardwicke, ordered to be put to the judges ; on their application they were excused answering one of the questions; but the remainder were answered by ten of the judges ; Lord Mansfield, being a peer, of course did not answer as a judge, and Mr. Justice Foster was prevented by a domestic misfortune from attending.

The only question, to which I find it necessary to draw the attention of the house, is the following. “ Whether in all cases whatsoever, the judges are so bound by the facts set forth, in the return to the writ of Habeas Corpus, that they cannot discharge the person brought up before them, although it should appear most manifestly to the judges, by the clearest and most undoubted proof, that such return is false in fact, and that the person so brought up is restrained of his liberty, by the most unwarrantable means, and in direct violation of law and justice?” By the answers of the judges to that question, it clearly appears, that although the judges did not conceive themselves precluded from discharging the person brought up before them, if it should appear manifest to them, by the clearest and most undoubted proof, such as a verdict of a jury or judgment on demurrer, or otherwise, in an action for a false return, that such return is false in fact; yet that they were of opinion, that in case the facts returned to a writ of Habeas Corpus showed a sufficient ground in point of law for such restraint, that the court or judge before whom such writ was returnable, could not try the facts contained in such return, by affidavits. Although, Sir, Mr. Justice Foster was unable to attend, and deliver his opinion, it appears, from the history of his life, written by his nephew, Mr. Dodson, that he took a very strong interest in the question ; he seems

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