The jury brought in a verdict of not guilty, but the court, acting in a very arbitrary manner, remanded the prisoner back to the Tower under pretence that the government had other matters against him. The proceeding against Sir N. Throgmorton is the first in the State Trials that has the appearance of a regular trial. Throgmorton displayed remarkable skill and courage in his defence; the court did all in its power to browbeat the jury and wrest the law to his destruction.

Such cases were then of frequent occurrence. The older remedies serving as a safeguard against unlawful imprisonment, were-I. The writ of Mainprise, ensuring the delivery of the accused to a friend of the same, who gave security to answer for his appearance before the court when required, and in token of such undertaking he held him by the hand (le prit par le main.) II. The writ "De odio et atiâ," i. e., of hatred and malice, which, though not abolished, has long since been antiquated. It was an ancient provision for restoring the liberty of the subject. By the common law no man imprisoned for an offence which, if proved, would touch his life or members, could be bailed out but by the Supreme Criminal Court. Hence, in unsettled and oppressive times it became a practice for malicious persons to have a man imprisoned for a capital offence without either indictment or appeal brought against him, and there he was, of necessity, to lie until the justice in eyre came into the county to deliver the jails, which, regularly, was but once in seven years. To avoid this hardship, the writ de odio et atia was invented and issued out of the Chancery. By Magna Charta it is ordered to be granted without any purchase or reward; it directed the sheriff to make inquisition in the county court whether the imprisonment proceeded from malice or not. If the jury found it did upon its return, the person accused had a right to a writ, ordering the sheriff to bail him.* III. The writ "De homine replegiando," or replevying a man, that is, delivering him out on security to answer what may be objected against him.

A writ is, originally, a royal writing, either an open patent addressed to all to whom it may come, and issued under the great seal; or, "litteræ clause," a sealed letter addressed to a particular person; such writs were prepared in the royal courts or in the Court of Chancery.

* Sullivan's Lectures, 487.

The most usual instrument of protection, however, against arbitrary imprisonment is the writ of "Habeas corpus," so called from its beginning with the words, "Habeas corpus ad subjiciendum," which, on account of its universal application and the security it affords, has, insensibly, taken precedence of all others. This is an old writ of the common law, and must be prayed for in any of the Superior courts of common law. The chancellor also, in his mixed jurisdiction, might issue writs of "habeas corpus cum causâ." A defendant arrested upon any obligation or bond, extorted by fraud or duress, might, since the origin of the separate Chancery jurisdiction, obtain relief by means of such a writ, returnable in Chancery. The operation of every writ of habeas corpus extends into all counties, the king himself thereby requiring the person having any one of his subjects in custody to produce him before the court, with a return of the day and cause of commitment, that the party detained may, according as the judge shall decree, be put at liberty or kept in prison. "So odious was unjust imprisonment, or unjust detaining of any free man in prison," says Lord Coke,* "that the English law has always provided remedies for which the writ of habeas corpus is the readiest, because of its simplicity and promptness; the very essence of the remedy being that the innocent shall not be worn and wasted by long imprisonment."+

But this writ, which in cases of violent arrest brought about by means of private persons, or obtained at their instance, might afford some kind of remedy, proved but a feeble, or rather wholly ineffectual protection against the arbitrary power of the sovereign. The right of an English subject to a writ of habeas corpus, and to a release from imprisonment unless sufficient cause be shown for his detention, was fully canvassed in the first years of the reign. of Charles I. Five knights, Darvel, Corbet, Earl, Heveningham, and Hampden, were imprisoned by the Privy Council for refusing their quota of the taxes arbitrarily imposed by Charles; they sued the Court of King's Bench for a writ of habeas corpus, the warden of the Fleet made return, that they were committed by the special command of his majesty; this gave rise to the question, whether such return was sufficient to justify the court in remanding the parties to custody; the judges appointed durante bene placito and influenced by the court, decided in favour of the crown.

The parliament endeavoured to prevent such arbitrary imprisonment by passing the "Petition of Right," which enacted that no freeman, in any such manner as is before mentioned, should be imprisoned or detained. Even this act was found unavailing against the malevolent interpretations put by the judges; hence the 16 Charles I., c. 10, was passed, which enacts, that when any person is restrained of his liberty by the king in person, or by the Privy Council, or any member thereof, he shall, on demand of his counsel, have a writ of habeas corpus, and, three days after the writ, shall be brought before the court to determine whether there is ground for further imprisonment, for bail, or for his release.

Notwithstanding these provisions, the immunity of English subjects from arbitrary detention was not ultimately established in full practical efficiency until the passing of the statute of Charles II., commonly called the "Habeas Corpus Act." А striking case gave rise to this enactment. Jenks, a citizen of London, on the popular side, was committed by the king in council, for a mutinous speech in Guildhall; an application was made to admit him to bail, which the justice at Quarter Sessions refused, on pretence that he had been committed by a superior court; they also denied him trial because his name did not appear in the calendar of prisoners. Application was made to the Chancellor for a habeas corpus, who declined to issue it during the vacation. The Chief Justice of the King's Bench, to whom application was afterwards made, gave such dilatory answers that Jenks lay in prison for several weeks. After the prisoner had lain two months in the Gate-house the Council voluntarily admitted him to bail.*

On the 27th May, 1679, the Habeas Corpus Act, entitled "An Act for better securing of the liberty of the subject, and for prevention of imprisonment beyond seas," was passed. It provides: That when any person shall bring a writ of habeas corpus directed to a sheriff or jailer, or other person whatsoever, for any person in his custody, such sheriff, or jailer shall, within three days after service (unless the commitment were for treason or felony, plainly and specially expressed in the warrant of com

* Hallam, iii., C. H. N. Mr. Hallam seems to be of opinion that this case did not produce the famous Act of Habeas Corpus. He thinks that the

arbitrary proceedings of Lord Clarendon were what really gave rise to it.-Delolme, b. i., c. 14.

mitment) make return of such writ, and bring the body of the party so committed or restrained, before the Lord Chancellor or the judges or barons of the court from which the writ shall issue; and shall then likewise certify the true cause of his imprisonment. It is further provided that, on complaint and request in writing by or on behalf of any person detained for any crime (unless for treason or felony, and other than person convicted, or in execution by legal process), the Lord Chancellor, or any one of the judges of the three courts, upon view of a copy of the warrant, shall, in vacation time, and out of term, award a habeas corpus, returnable immediately before himself or any other of the judges. And within two days after the party is brought before the judge, he shall discharge the prisoner from his imprisonment, taking his recognizance, with one or two sureties, for his appearance in the court. where the offence is properly cognizable, unless it shall appear that the party is detained on legal process, order, or warrant, out of some court having jurisdiction of criminal matters, or by some warrant signed and sealed by any of the judges, or by some justice or justices of the peace for matters or offences which, by law, are not bailable. The party accused, if not tried in the next succeeding term or sessions, must be discharged from imprisonment. If a judge deny a writ of habeas corpus after motion made for it, he shall forfeit to the prisoner £500. That no inhabitant of England, excepting those convicted of crimes entailing transportation, shall be sent as prisoners to Scotland, Ireland, Jersey, Guernsey, or any places beyond seas within or without the dominions of the Queen. Whosoever acts contrarywise, shall forfeit to the person aggrieved £500 with treble costs; shall be disabled to bear any office of trust or profit, and shall incur the penalties of premunire, and shall be incapable of the Queen's pardon. Officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand, a copy of the warrant of commitment and detainer; or, of transferring the prisoner from one prison to another without sufficient ground, or without an authorization permitted by the act; for the first offence shall forfeit to the prisoner £100; and for the second offence £200 to the party aggrieved; and he shall, henceforth, be incapable to hold or execute his office. That persons set at large by habeas corpus shall not be again imprisoned or committed for the same offence, other than by legal

order and process of the court wherein he is bound by recognizance to appear, or other court having jurisdiction of the cause. Any person knowingly committing to prison contrary to this enactment, or knowingly aiding or assisting therein, shall forfeit to the prisoner £500. The utmost limit for the production of a prisoner before the judges is not to exceed twenty days.

All these provisions extend also to the Channel Islands. The benefit of the writ was confined to cases of commitment or detainer for criminal, or supposed criminal, matter; but not on account of any other loss of liberty. A writ of habeas corpus was refused to a gentleman who, in 1758, had, by mistake, been impressed as a soldier.

According to 56 George III., c. 100, writs may further be issued during vacation in cases which have not been comprised in the Act of Charles II. By the more recent enactments the judges of the several courts have power to grant the writs and make them returnable in any court. A judge may even grant in vacation a habeas corpus, returnable before himself in chambers. The Habeas Corpus Act can only be suspended by consent of parliament. On such consent being obtained, suspected persons may be incarcerated without special warrants, and kept in prison for an unlimited time. In 1817, the Habeas Corpus Act was thus suspended, the respective statute 57 Geo. III., c. 3, being entitled "An Act to empower his Majesty to secure and detain such persons as his Majesty shall suspect are conspiring against his person and government."

Should the Suspension Act not otherwise provide, those classes of prisoners to which the act applies cannot be discharged on bail, and cannot require to be judged within a time specified. For unlawful acts the respective officials remain still responsible; on the withdrawal of the exceptional law, a "bill of indemnity" is, however, passed for the protection of magistrates who have acted in the interest of public safety.*

Against the arbitrary dealing of the judges no such protection is now required, inasmuch as they are independent, and removed from the sphere of party politics; their commission of jaildelivery is a sufficient safeguard to protect England from the terrors of secret inquisitorial process, as it imposes upon them the obligation to try and deliver every prisoner who shall be in

* Bowyer, 424.