Charles Grant Robertson.

Select statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 online

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cellor or Lord Keeper, or such justices, barons, or one of them, before
whom the said writ is made returnable, and in case of his absence,
before any other of them, with the return of such writ, and the true
causes of the commitment and detainer ; and thereupon, withia two
days after the party shall be brought before them, the said Lord
Chancellor or Lord Keeper, or such justice or baron before whom the
prisoner shall be brought as aforesaid, shall discharge the said
prisoner from his imprisonment, taking his or their recognizance,
with one or more surety or sureties, in any sum according to their
discretions, having regard to the quality of the prisoner and nature
of the offence, for his or their appearance in the Court of King's
Bench the term following, or at the next assizes, sessions, or general
gaol, delivery of and for such county, city, or place where the com-
mitment was, or where the offence was committed, or in such other
court where the said offence is properly cognizable, as the case shall
require, and then shall certify the said writ with the return thereof,
and the said recognizance or recognizances into the said court where
such appearance is to be made ; unless it shall appear unto the said
Lord Chancellor or Lord Keeper, or justice or justices, or baron or
barons, that the party so committed is detained upon a legal process,
order or warrant, out of some court that hath jurisdiction of criminal
matters, or by some warrant signed and sealed with the hand and
seal of any of the said justices or barons, or some justice or justices
of the peace, for such matters or offences for the which by the law
the prisoner is not bailable.

IV. Provided always, and be it enacted. That if any person shall
have wilfully neglected by the space of two whole terms after his
imprisonment, to pray a Habeas Corpus for his enlargement, such
person so wilfully neglecting shall not have any Habeas Corpus to
be granted in vacation time, in pursuance of this act.

V. And be it further enacted by the authority aforesaid. That if
any officer or officers, his or their under officer or under officers,
under keeper or under keepers, or deputy, shall neglect or refuse to
make the returns aforesaid, or to bring the body or bodies of the
prisoner or prisoners according to the command of the said writ,
within the respective times aforesaid, or upon demand made by the
prisoner or person in his behalf, shall refuse to deliver, or within the
space of six hours after demand shall not deliver, to the person so



THE HABEAS CORPUS AMENDMENT ACT 49

demanding, a true copy of the warrant or warrants of commitment
and detainer of such prisoner, which he and they are hereby required
to deliver accordingly ; all and every the head gaolers and keepers of
such prison, and such other person in whose custody the prisoner
shall be detained, shall for the first offence forfeit to the prisoner or
party grieved, the sum of one hundred pounds ; and for the second
offence the sum of two hundred pounds, and shall and is hereby
made incapable to hold or execute his said office ; the said penalties
to be recovered by the prisoner or party grieved, his executors or
administrators, against such offender, his executors, or administrators,
by any action of debt, suit, biU, plaint or information, in any of the
King's courts at Westminster, wherein no essoin, protection, privilege,
injunction, wager of law, or stay of prosecution by Non vult ulterius
prosequi, or otherwise, shall be admitted or allowed, or any more than
one importance ; and any recovery or judgement at the suit of any
party grieved, shall be a sufficient conviction for the first offence;
and any after recovery or judgement at the suit of a party grieved
for any offence after the first judgement, shall be a sufficient con-
viction to bring the officers or person within the said penalty for
the second offence,

VI. And for the prevention of unjust vexation by reiterated com-
mitments for the same offence ; be it enacted by the authority afore-
said. That no person or persons which shall be delivered or set at
large upon any Habeas Corpus, shall at any time hereafter be again
imprisoned or committed for the same offence by any person or
persons whatsoever, other than by the legal order and process of such
court wherein he or they shall be bound by recognizance to appear,
or other court having jurisdiction of the cause; and if any other
person or persons shall knowingly, contrary to this act, recommit or
imprison, or knowingly procure or cause to be recommitted or im-
prisoned, for the same offence or pretended offence, any person or
persons delivered or set at large as aforesaid, or be knowingly aiding
or assisting therein, then he or they shall forfeit to the prisoner or
party grieved the sum of five hundred pounds ; any colourable pre-
tence or variation in the warrant or warrants of commitment, not-
withstanding, to be recovered as aforesaid.

VII. Provided always, and be it further enacted. That if any
person or persons shall be committed for high treason or felony,
plainly and specially expressed in the warrant of commitment, upon
his prayer or petition in open court the first week of the term, or the
first day of the sessions of Oyer and Terminer, or general gaol-
delivery, to be brought to his trial, shall not be indicted some time in

E



50 STATUTES AND DOCUMENTS

the next term, sessions of Oyer and Terminer or general gaol-delivery,
after sucli commitment ; it shall and may be lawful to and for the
judges of the Court of King's Bench and justices of Oyer and
Terminer, or general gaol-delivery, and they are hereby required,
upon motion to them made in open court the last day of the term,
sessions, gaol-delivery, either by the prisoner or any one in his
behalf, to set at liberty the prisoner upon bail, unless it appear to
the judges and justices upon oath made, that the witnesses for the
King could not be produced the same term, sessions, or general gaol-
delivery ; and if any person or persons committed as aforesaid, upon
his prayer or petition in open court the first week of the term or first
day of the sessions of Oy&r and Terminer and general gaol-delivery,
to be brought to his trial, shall not be indicted and tried the second
term, sessions of Oyer and Terminer or general gaol-delivery, after
his commitment, or upon his trial shall be acquitted, he shall be dis-
charged from his imprisonment.

VIII. Provided always. That nothing in this act shall extend to
discharge out of prison any person charged in debt, or other action,
or with process in any civil cause, but that after he shall be dis-
charged of his imprisonment for such his criminal offence, he shall
be kept in custody according to the law, for such other suit.

IX. Provided always, and be it enacted by the authority afore-
said. That if any person or persons, subjects of this realm, shall be
committed to any prison, or in custody, of any officer or officers what-
ever for any criminal or supposed criminal matter, that the said
person shall not be removed from the said prison and custody into
the custody of any other officer or officers j unless it be by Habeas
Corpus or some other legal writj or where the prisoner is delivered
to the constable or other inferior officer to carry such prisoner to
some common gaol; or where any person is sent by order of any
judge of assize or justice of the peace, to any common workhouse or
house of correction; or where the prisoner is removed from one
prison or place to another within the same county, in order to his or
her trial in discharge of due course of law ; or in case of sudden fire
or infection, or other necessity ; and if any person or persons shall,
after such commitment aforesaid, make out and sign, or counter-
sign any warrant or warrants for such removal aforesaid, contrary to
this act; as well he that makes or signs, or countersigns such warrant
or warrants, as the officer or officers that obey or execute the same,
shall sufi'er and incur the pains and forfeitures in this act before
mentioned, both for the first and second ofience respectively, to be
recovered in manner aforesaid by the party aggrieved.



THE HABEAS CORPUS_ AMENDMENT ACT 51

X. Provided also, and be it further enacted by the authority afore-
said, That it shall and may be lawful to and for any prisoner and
prisoners as aforesaid, to move and obtain his or their Habeas
Corpus, as well ou.t of the High Court of Chancery or Court of
Exchequer, as out of the Courts of King's Bench or Common Pleas,
or either of them ; and if the said Lord Chancellor or Lord Keeper,
or any judge or judges, baron or barons for the time being of the
degree of the coif, or any of the courts aforesaid, in the vacation time,
upon view of the copy or copies of the warrant or warrants of
commitment or detainer, or upon oath made that such copy or copies
were denied as aforesaid, shall deny any writ of Habeas Corpus, by
this act required to be granted, being moved for as aforesaid, they
shall severally forfeit to the prisoner or party grieved the sum of five
hundred pounds, to be recovered in manner aforesaid.

XI. And be it declared and enacted by the authority aforesaid.
That an Habeas Corpus, according to the true intent and meaning of
this act, 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 ; any law or usage to the contrary notwith-
standing.

XII. And for preventing illegal imprisonments in prisons beyond
the seas, be it further enacted by the authority aforesaid. That no
subjects of this realm that now is, or hereafter shall be an inhabitant
or resident of this kingdom of England, dominion of Wales, or town
of Berwick upon Tweed, shall or may be sent prisoner into Scotland,
Ireland, Jersey, Guernsey, Tangier, or into other parts, garrisons,
islands, or places beyond the seas, which are or at any time hereafter
shall be within or without the dominions of His Majesty, his heirs or
successors ; and that every such imprisonment is hereby enacted and
adjudged to be illegal ; and that if any of the said subjects now is or
hereafter shall be so imprisoned, every such person and persons so
imprisoned, shall and may, for every such imprisonment, maintain,
by virtue of this act, an action or actions of false imprisonment, in
any of His Majesty's courts of record, against the person or persons
by whom he or she shall be so committed, detained, imprisoned, sent
prisoner, or transported, contrary to the true meaning of this act, and
against all and any person or persons that shall frame, contrive, write,
seal, or countersign any warrant or writing for such commitment,
detainer, imprisonment, or transportation, or shall be advising, aiding,
or assisting in the same, or any of them ; and the plaintiff in every
such action shall have judgement to recover his treble costs, besides



52 STATUTES AND DOCUMENTS

damages, which damages so to be given shall not be less than five
hundred pounds ; in which action, no delay, stay, or stop of proceed-
ing by rule, order, or command, nor no injunction, protection, or
privilege whatsoever, nor any more than one imparlance, shall be
allowed, excepting such rule of the court wherein the action shall
depend, made in open court, as shall be thought in justice necessary,
for special cause to be expressed in the said rule ; and the person or
persons, who shall knowingly frame, contrive, write, seal, or counter-
sign any warrant for such commitment, detainer, or transportation, or
shall so commit, detain, imprison, or transport any person or persons
contrary to this act, or be anyways advising, aiding, or assisting
therein, being lawfully convicted thereof, shall be disabled from
thenceforth to bear any office of trust or profit within the said realm
of England, dominion of Wales, or town of Berwick upon Tweed, or
any of the islands, territories, or dominions thereunto belonging ; and
shall incur and sustain the pains, penalties, and forfeitures limited,
ordained, and provided, in and by the statute of provision and prae-
munire made in the sixteenth year of King Eichard the Second ; and
be incapable of any pardon from the King, his heirs or successors, of
the said forfeitures, losses, or disabilities, or any of them.

XIII. Provided always. That nothing in this act shall extend to
give benefit to any person who shall by contract in writing agree
with any merchant or owner of any plantation, or other person what-
soever, to be transported to any parts beyond the seas, and receive
earnest upon such agreement, although that afterwards such person
shall renounce such contract.

XIV. Provided always, and be it enacted. That if any person or
persons, lawfully convicted of any felony, shaU, in open court, pray
to be transported beyond the seas, and the court shaU think fit to
leave him or them in prison for that purpose, such person or persons
may be transported into any parts beyond the seas ; this act, or any-
thing therein contained to the contrary notwithstanding.

XV. Provided also, and be it enacted. That nothing herein con-
tained shall be deemed, construed, or taken, to extend to the im-
prisonment of any person before the first day of June, one thousand
six hundred seventy and nine, or to anything advised, procured, or
otherwise done, relating to such imprisonment ; anything herein con-
tained to the contrary notwithstanding.

XVI. Provided also, That if any person or persons, at any time
resiant in this realm, shall have committed any capital offence in
Scotland or Ireland, or any of the islands, or foreign plantations of
the King, his heirs or successors, where he or she ought to be tried



THE HABEAS CORPUS AMENDMENT ACT 53

for such offence, such person or persons may be sent to such place,
there to receive such trial, in such manner as the same might have
been used before the making of this act ; anything herein contained
to the contrary notwithstanding.

XVII. Provided also, and be it enacted, That no person or persons
shall be sued, impleaded, molested, or troubled for any offence against
this act, unless the party offending be sued, or impleaded for the
same within two years at the most after such, time wherein the
offence shall be committed, in case the party grieved shall not be
then in prison ; and if he shall be in prison, then within the space
of two years after the decease of the person imprisoned, or his or her
delivery out of prison, which shall first happen.

XVIII. And, to the intent no person may avoid his trial at the
assizes or general gaol delivery, by procuring his removal before the
assizes, at such time as he cannot be brought back to receive his trial
there, be it enacted, That, after the Assizes proclaimed for that
county where the prisoner is detained, no person shall be removed
from the common gaol upon any Habeas Corpus granted in pursuance
of this act, but upon any such Habeas Corpus shall be brought before
the judge of assize in open court, who is thereupon to do what to
justice shall appertain.

XIX. Provided nevertheless, That, after the Assizes are ended,
any person or persons detained, may have his or her Habeas Corpus
according to the direction and intention of this act.

XX. And be it also enacted by the authority aforesaid. That if
any information, suit, or action shall be brought or exhibited against
any person or persons for any offence committed or to be committed
against the form of this law, it shall be lawful for such defendants
to plead the general issue, that they are not guilty, or that they owe
nothing, and to give such special matter in evidence to the jury that
shall try the same, which matter being pleaded had been good and
sufiicient matter in law to have discharged the said defendant or
defendants against the said information, suit or action, and the said
matter shall be then as available to him or them, to all intents and
purposes, as if he or they had sufficiently pleaded, set forth, or
alledged the same matter in bar or discharge of such information,
suit, or action.

XXI. And because many times persons charged with petty treason
or felony, or as accessories thereunto, are committed upon suspicion
only, whereupon they are bailable, or not, according as the circum-
stances making out that suspicion are more or less weighty, which
are best known to the justices of peace that committed the persons,



54 STATUTES AND DOCUMENTS

and have examinations before them, or to other justices of the peace
in the county ; be it therefore enacted, That where any person shall
appear to be committed by any judge or justice of the peace, and
charged as accessory before the fact, to any petty treason or felony,
or upon suspicion thereof, or with suspicion of petty treason or
felony, which petty treason or felony shall be plainly and specially
expressed in the warrant of commitment, that such person shall not
be removed or bailed by virtue of this act, or in any other manner
than they might have been before the making of this act.

(See Dicey, L.O. iv. and v.; Hallam, C.H. ii. xii.; Gnetst, E.G. xl.-xlv. ;
Ranke, H.E. iv. 85 et scg.; Macaulay, H.E. ch. i. ; Hurd, The Habeas
Corpus.)

A MODERN WEIT UNDER THE ACT
Victoria, by the grace of God, of the United Kingdom of Great
Britain and Ireland, Queen, defender of the faith, to the Keeper of
our gaol of , at , or his deputy, greeting.

"We command you, that you have before us at Westminster Hall,
immediately after the receipt of this writ, the body of C. D., being
committed and detained in our prison under our custody (as is said),
together with the day and cause of the taking and detaining of the
said C. D., by whatever name the said C. D. be called in the same, to
undergo and receive all and singular such things as our Court shall
then and there consider of him in that behalf, and that you have
then there this writ. Witness Thomas, Lord Denman, at West-
minster, the day of , in the year of our reign. By the
Court, D.

THE RETURN TO THE WRIT
[Indorsed on the writ as follows] The execution of this writ
appears in a certain schedule hereunto annexed,

E. F. Keeper.
I, E. F. Keeper of her Majesty's gaol of , at , in the

writ to this schedule annexed named, do certify and return to our
Sovereign Lady, the Queen, that before the coming to me of the said
writ, (that is to say), on &c. C. D. in the said writ also named, was
committed to my custody, by virtue of a certain warrant of commit-
ment, the tenor of which is as follows : [here insert a copy of the
warrant]. And these are the causes of the detaining of the said
C. D., whose body I have here ready, as by the said writ I am
commanded. E. F. Keeper.

{Burns' Justice of the Peace, ii. 947-948.)



THE CONVENTION PARLIAMENT 55

XII
THE CONVENTION PARLIAMENT

1 Will, and Mary, Cap. I. 1689.

An Act for removing and preventing all Questions and Disputes
concerning the Assembling and Sitting of this present Parliament.

For preventing all doubts and scruples which may in any wise
arise concerning the meeting, sitting and proceeding of this present
Parliament, be it declared and enacted . . .

II. That the Lords Spiritual and Temporal and Commons convened
at Westminster, the two and twentieth day of January in the year of
Our Lord one thousand six hundred eighty eight and there sitting on
the thirteenth day of February following are the two Houses of
Parliament, and so shall be and are hereby declared, enacted and
adjudged to be to all intents, constructions and purposes whatsoever,
notwithstanding any want of writ or writs of summons or any other
defect of form or default whatsoever, as if they had been summoned
according to the usual form, and that this present Act and all other
Acts, to which the royal assent shall at any time be given before the
next prorogation after the said thirteenth of February, shall be under-
stood taken and adjudged in law to begin and commence upon the
said thirteenth of February on which day their said Majesties at the
request and by the advice of the Lords and Commons did accept the
crown and royal dignity of £ing and Queen of England, France and
Ireland and the dominions and territories thereunto belonging.

(III. repeals 30 Oha. II. c. 6. IV. provides that the taking of the oaths
prescribed by this Act shall be as effectual as taking the oaths prescribed
by the Act repealed, and that future parliaments shall take the oaths
prescribed by this Act.)

V. And it is hereby further enaclied ^ ... that the oaths above
appointed by this Act to be taken in the stead and place of the oaths
of allegiance and supremacy, shall be in the following words . . .

VI. "I, A. B. do sincerely promise and swear, that I will be
faithful and bear true allegiance to their Majesties King William and
Queen Mary, so help me God."

1 See 1 Will, and Mar. o. 8, p. 69.



56 STATUTES AND DOCUMENTS

VII. " I, A. B. do swear, that I do, from my heart abhor, detest
and abjure as impious and heretical, that damnable doctrine and
position that princes excommunicated or deprived by the pope or any
authority of the see of Eome may be deposed or murdered by their
subjects or any other whatsoever ; and I do declare, that no foreign
prince, person, prelate, state or potentate hath or ought to have any
power, jurisdiction, superiority, pre-eminence or authority, eccle-
siastical or spiritual, within this realm, so help me God."

VIII. Provided always and be it declared, that this present
Parliament may be dissolved after the usual manner, as if the same
had been summoned and called by writ.

(Note that 2 Will, and Mar. Cap. I. deals with the " Convention Par-
liament," saying, " We (the Lords Spiritual and temporal and Commons) do
most humbly beseech your Majesties that ... it be enacted . . . that all
and singular the Acts made and enacted in the said (Convention) Parlia-
ment were and are laws and statutes of this kingdom, and as such ought
to be reputed, taken and obeyed by all the people of this kingdom.")

(See RanTce, H.E. iv. 473 et seq. ; Macaulay, H.E. i. 654 et seq. ; Hallam,
C.H. iii. 93 et seq. ; Freeman, Growth of the Eng. Constitution, ch, 2.)



THE LETTERS SUMMONING THE ASSEMBLY OF
THE CONVENTION PARLIAMENT



SUMMONS TO THE ASSEMBLY, 1688

Whereas the Necessity of affairs do require speedy Advice, we do desire
all such persons as have served as Knights, Citizens and Burgesses, in any
of the Parliaments that were held during the reign of the late King
Charles the Second, to meet us at St. James's upon Wednesday the six and
twentieth of this Instant December, by Ten of the clock in the Morning.
And we do likewise desire that the Lord Mayor and Court of Aldermen of
the City of London would be present at the same time ; and that the
Common Council would appoint Fifty of their number, to be there likewise,
and hereof we desire them not to fail.

Given at St. James's, the three and twentieth day of December, 1688.
W. H. Pbincb op Grange.

By his Highness' Special Command

C. HUGQENS.

(C.J. ix. 5.)



THE CONVENTION PARLIAMENT 57

II

THE LBTTEES FOR ELECTING OF MEMBERS FOR THE CONVENTION

Whereas the Lords Spiritual and Temporal, the Knights, Citizens and
Burgesses, heretofore Members of the Commons House of Parliament,
during the reign of Charles the Second, residing in and about the City of
London, together with the Aldermen, and divers of the Common-Council
of the said city, in this extraordinary conjuncture at our request, severally
assembled, to advise as the best manner how to attain the Ends of our
Declaration, in calling a free Parliament, for the Preservation of the
Protestant Religion, and restoring the Rights and Liberties of the King-
dom, and Settling the same, that they may not be in danger of being again
subverted, have advised and desired us to cause our Letters to be written
and directed, for the Counties, to the Coroners of the respective Counties ;
and for the Universities, to the respective Vice-Chancellors ; and for the
Cities, Boroughs and Cinque-Ports, to the Chief Magistrate of each respec-
tive City, Borough and Cinque-Port ; containing Directions for the
choosing, in all such Counties, Cities, Universities, Boroughs and Cinque
Ports, within Ten Days after the Receipt of the said respective Letters,
such a Number of Persons to represent them, as from every such Place is
or are of Right to be sent to Parliament ; of which Elections, and the
Times and Places thereof, the respective officers shall give Notice ; the



Online LibraryCharles Grant RobertsonSelect statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 → online text (page 7 of 54)