5. 5. Proceedings of and coun ei declared ille gil. s. 6. and no court or place of judicature shall be erected within England or Wales, which shall have the like jurisdiction as hath been used in the star-chamber. And this statute declares and enacts, (s. 5.) that neither his majesty nor his privy council, have any jurisdiction, power, or authority, by English bill, petition, arucies, Fbel, or any other arbitrary way, to examine or draw into ques- g tion, determine or dispose of the lands or goods on any subject of this kingdom; but the same ought to be tred and determined in the ordinary courts of justice, and by the ordinary course of law. By s 6. if any lord chancellor, lord treasurer, keeper of the king's privy seal, presi- Penalty for dent of the council, bishop, temporal lord, privy coun- against this act. offending sellor, judge or justice, shall offend contrary to this law, they shall forfeit £500. unto any party grieved. his executors, &c. who shall prosecute for the same, and first obtain judgment, to be recovered in any court of record at Westminster, by action of debt, &c.; and if any person against whom any such recovery shall be had, shall offend again in the same, he shall in like manner torfeit £1000. unto any party grieved, &c. and if any person against whom such second recovery shall be had, shall offend again in the same kind, and shall be convicted by indictment, information, or other lawful way, suca person shall be incapable to bear his office, and sial be likewise disabled to make any gift or disposition of his lands, &c. or goods, &c. or to take any gift or legacy to his own use. And by s. 7. every person so offending, shall likewise forfeit unto the party grieved his treble damages, to be recovered in any court of record at Westminster, by action of debt, &c. By s. 8. if any person shall be restrained of his liberty by order or decree of any such court as aforesaid, or by command of the Any person reking in person, or by warrant of the council board, or of be conteng to any of his majesty's privy council, every person so re-eve a habeas strained, upon demand or motion made unto the judges corpus. of the king's bench or common pleas, in open court, shall, without delay, have a habeas corpus directed generally unto all and every sheriffs, gaoler, minister, officer, or other person, in whose custody the party shall be; and the sher iffs 5.7. s. 8. strained of his! the c, shall Treble damages for default. iffs or other person shall, at the return of the writ, on due notice given, at the charge of the party who procureth such writ, and upon security by his own bond to pay the charge of carrying back the prisoner, if he shall be remanded, (such charges to be ordered by the court, if any difference shall arise,) bring the body of the party before the judges in open court, and shall certify the cause of his detainer, and thereupon the court, within 3 court days after such return made, shall proceed to determine whether the cause of commitment be just, and shall thereupon do what to justice shall appertain. And if any thing shall be wilfully done or omitted by any judge, officer, &c. contrary to the direction hereof, such offender shall forfeit to the party grieved his treble damages, to be recovered as aforesaid. By s. 9. this act shall exténd only to the court of star-chamber, and to the said courts holden before the president and council, in the marches of Wales, and before the president and council, in the northern parts, and to the court of the duchy of Lancaster, and the court of exchequer of the county palatine of Chester, and all courts of like jurisdiction, to be hereafter erected, and to the warrants and directions of the council board, and to the commitments of any persons made by the king in person, or by the privy council. And by s. 10. no Limitation for person shall be molested for any offence against this act, unless he be impleaded within 2 years after the offence 16 Car. 1.c.11. committed. The 16 Car. 1. c. 11. Eng. is to be here also referred to, which recites, that the commissioners for High commission causes ecclesiastical, by colour of the 1 Eliz. c. 1. Eng. court abolished. (an act restoring to the crown the ancient jurisdiction s. 9. To what comts o act shall extend. s. 10. actions, &c. Eng. over the state, ecclesiastical and spiritual, and abolishing all foreign power repugnant to the same,) had, to the great oppression of the king's subjects, used to fine and imprison them, and to exercise other authority not belonging to ecclesiastical jurisdiction; and therefore repeals the clause (s. 18.) of the i Eliz. c. 1. Eng. by colour of which they acted, and enacts, that no new * The 2 Eliz. c. 1. Ir. contains a similar clause (which will be stated in another place), but which has not been repealed, though a bill was brought into parliament for the purpose, 3 Oct. 1703. vide 3 Com. Journ. p. 40. 31 Car. 2. c. 2. Illegal impri the seas, how punished. new court shall be erected within England or Wales, which may have like power as the high commission court. pretended to have: but that all commissions, &c. made or to be made by the king, and all powers granted thereby, and all acts and decrees to be made by colour thereof, shall be void. And the 3d article of the Bill of Rights 1W. & M. st.2. declares, that the commission for erecting the late court c. 2. Eng. of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious. And the following clauses of the Habeas Corpus Act, 31 Car. 2. c.2. Eng. (intitled "an act for the better securing the liberty of the subject, and for pre- s. 12. Eng. vention of imprisonments beyond the seas,") may be here stated; the other provisions of this act for preventing the sonments beymd delays of sheriffs, gaolers, and other officers, in making returns to writs of habeas corpus,being reserved for another place. This statute enacts (s. 12.) that no subject being an inhabitant or resident of England, &c. shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into ports, garrisons, islands, or places beyond the seas, or within or without the dominions of the king; but that every such imprisonment shall be illegal, and every person so imprisoned shall maintain an action of false imprisonment in any court of record against the person by whom he shall be so committed, detained, imprisoned, sent prisoner, or transported, and against every person that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, &c.; or shall be advising, aiding, or assisting in the same; and shall in such action recover dainages not less than £500. and treble costs, in which action no stay of proceeding by rule, order, or command, nor any injunction, protection, or privilege, nor any more than one imparlance, shall be allowed, except such rule of the court wherein the action shall depend, made in open court, as shall be thought necessary, for special cause to be expressed in said rule; and the person who shall knowingly frame, &c. any warrant for such commitment, detainer, or transportation; or shall so commit, &c. any person contrary to this act, or be any ways advising, &c. therein, being convicted thereof, shall be d's.bled to bear any office s. 13. Proviso. 3. 14. Proviso. s. 16. Offenders where tried. c. 2. Eng. office of trust or profit within England, Wales, or Berwick, or any of the dominions thereunto belonging, and shall incur the penalties of the statute of provision and præmunire, 16 Ric. 2. c. 5. and be incapable of the king's pardon. But by by s. 13. 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, to be transported to any parts beyond the seas, and receive earnest upon such agreement, although that afterwards such person shall renounce such contract. And by s. 14. if any person convicted of felony, shall in open court pray to be transported beyond the seas, and the court shall think fit to leave him in prison for that purpose, such person may, notwithstanding this act, be transported into any parts beyond the seas. And by s. 16. if any person resiant in this realm, shall have committed any offence in Scotland or Ireland, or any of the islands or foreign plantations of the king, where he ought to be tried for such offence, such person 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. And in further 1 W&M. st. 2. vindication of the right of personal liberty, it is declared by the 10th article of the Bill of Rights, 1 W. & M. st. 2. c. 2. Eng. that excessive bail ought not to be required. Excessive bail prohibited. What constitutional barriers erected in reland, Such of the statutes above mentioned, as were prior to the reign of Henry VII. were adopted in Ireland by the 10 Hen. 7. c. 22. Ir. But no parliamentary declarations of the liberties of the people have been made in Ireland, similar to the Petition of Right, and Bill of Rights. With respect to the 16 Car. 1. c. 10. Eng. it is to be observed that the court of Castle Chamber in Ireland exercised a jurisdiction similar to that of the Star Chamber in England, (its authority being derived from the 3 Hen. 7. c. 1. E. & I. ante p. 4. and recognized by several Irish statutes,) but no act similar to the 16 Car. I. c. 10. Eng. has been ever passed in Ireland, though a bill appears to have been brought into parliament,* 27 Sept. 1695, for the abolition of this court as a new Vide 2 Com. Journ. 691. new and oppressive jurisdiction. And with respect to the 31 Car. 2. c. 2. Eng. supra, it is observable, that though the several provisions of this English statute (which will be stated in another place) were adopted by c. 11. Ir. Act of Ireland. s. 16. the 21 & 22 Geo. 3. c. 11. Ir. yet this latter act does not 21 & 22 Geo.3. extend to the prevention of imprisonments beyond the seas, and its title is accordingly varied from the English act in this respect. And this Habeas Corpus Act of Ire- Habeas Corpus land contains this peculiar provision (s. 16.) that it shall be lawful for the chief governor and privy council of this kingdom, to suspend this act, by a proclamation under Proviso as to its the great seal of this kingdom, during such time only as there shall be an actual invasion or rebellion in this kingdom, or Great Britain, and that no judge, or justice of peace, sball bail or try any person charged with being concerned in such invasion or rebellion, without an order from the lord lieutenant and privy council, signed by six of the privy council. occa suspension. cated. No ads, &c. to be taken but by And assent of parlia In addition to the provisions contained in Magna Right of private Charta, and the other statutes above mentioned, in main- property vinditenance of the right of private property, the 25 Edw. 1. 25 Fdw. 1. st.1. st. 1. c. 5. E. & I. provides, that the aids, tasks, and c. 5. F.& 1. prises, granted to the king for his wars and other sions, shall not be taken for a customary charge. by c. 6, no manner of aids, tasks, or prises, shall be taken but by common assent of all the realm, and for the common profit thereof, saving the ancient aids and prises accustomed. And by the 34 Edw. 1. st. 4. c. 1. E. & I. no tallage or aid shall be taken without the assent of the c. 1. E. & I. archbishops, bishops, earls, barons, knights, burgesses, ment. c. 6. 34 Edw.1. st 4. and other freemen of the land. The 14 Edw. 3. st. 2. 14 Fdw.3. st.2. c. 1. E. & I. contains also an undertaking on the part of c. 1. E. & 1. the king, and his heirs, that the prelates, earls, barons, and others of the commonalty, citizens, burgesses, and merchants, shall not be charged to make any aid, but by the common assent of the prelates, earls, barons, and other great men and commons in parliament. And the Petition of Right 3 Car. 1. recites, that by the 34 Edw. 1. st. 4. c. 1. and 25 Edw. 1. st. 1. c. 6. supra, and other the good laws and statutes of the realm, the king's sub jects 3 Car. 1. Eng. |