1 E. & I. out of his franchise or freehold, unless he be duly brought to answer, and forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none. The 28 Edw. 3. c. 3. E. & I. also enacts, 28 Edw. 3. c.3. that no man shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer, by due process of law. And by the 42 Edw. 3. c. 3. E. & I. no man shall be put 42 Elw. 3 c. I. to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land, and if any thing be done to the contrary, it shall be void in law, and holden for er-` And by c. 1. of this statute, the Great Charter (and the charter of the forest) shall be kept in all points, and any statute be made to the contrary, it shall be holden for none. ror. if & 3. F. & 1. the Petition of The rights of personal security and personal liberty Right of persoare further asserted by the Petition of Right, 3 Car. 1. nal security, and personal liberty, Eng. which recites the 9 Hen. 3. c. 29. 25 Edw. 3. st. 5. vindicated by c. 4. and 28 Edw. 3. c. 3. supra, and that against the te- Right. nor of said statutes, and other the good laws and statutes 3 Car. 1. Eng. of this realm, divers subjects had of late been imprisoned without any cause shewn, and when for their deliverance. they were brought before the justices by writs of habeas corpus, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by the king's special command, signified by the lords of the privy council, and yet were returned back to several prisons, without being charged with, any thing to which they might make answer according to law: And further recites, that of late, divers commissions under the great seal had issued forth, by which certain persons were appointed commissioners, with power to proceed, within the land, according to martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor, by pretext whereof some subjects had been by some of the said commissioners put to death; and sundry grievous offenders escaped the punishment due to them by the Eng. Court of starchamber abo shed. Arbitrary impri- laws and statutes of the realm; it is therefore prayed and sonment, and enacted, that no freeman in any such manner as is beproceedings by martial law, fore mentioned, shall be imprisoned or detained; and prohibited. that no commissions for proceeding by martial law, or of like nature, shall issue forth to any person to be executed 16 Car.1. c.10. as aforesaid. The 16 Car. 1. c. 10. Eng. recites the 9 Hen. 3. c. 29. 5 Edw. 3. c. 9. 25 Edw. 3. st. 5. c. 4. 28 Edw. 3. c. 3. and 42 Edw. 3. c. 3. supra, as also the 36 Edw.3.st. 1. c.15. by which all pleas before the king's justices, or in his other places, or before any of his other ministers, or in the courts and places of any other lords within the realm, were required to be entered and inrolled in Latin; and recites also the 3 Hen. 7. c. 1. E. & I. and 21 Hen. 8. c. 20. Eng. from which the authority of the court of star-chamber was derived; and forasmuch as the proceedings, censures, and decrees of that court, had by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government; and forasmuch as the council-table had of late assumed unto itself a power to intermeddle in civil causes, and matters only of private interest between party and party, and adventured to determine of the estates and liberties of the subject, contrary to the law of the land, and the rights and privileges of the subject; this statute therefore enacts (s. 3.) that the court called the star-chamber shall be dissolved, and neither the lord chancellor, lord treasurer, keeper of the privy seal, or president of the council, nor any bishop, temporal lord, privy counsellor or judge, shall have power to hear or determine any matter in the star-chamber, or to do any judicial or ministerial act in the said court; and all acts of parliament by which any jurisdiction is given to the star-chamber, shall, for so much, be repealed. And by s. 4. the like jurisdiction used in the court before the president and council in the marches of Wales, and in the court before the president and council in the northern parts, and also in the court of the duchy of Lancaster, and in the court of exchequer of the county palatine of Chester, held before the chamberlain and council of that court, shall be also repealed; S. 4. Similar jurisdic tions in Wales, tshed and s. 5. Proceedings of cl declared ille s. 6. against this act. 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, articles, libel, Aing and counor any other arbitrary way, to examine or draw into ques- gu tion, determine or dispose of the lands or goods of any subject of this kingdom; but the same ought to be tried 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 counoffending sellor, judge or justice, shall offend contrary to this law, they shall forfeit £500. unto any party grieved, his exe-. cutors, &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 forfeit £1000. unto any party grieved, &c. and if any person against whom such second recovery shall be had, snail offend again in the same kind, and shall be convicted by indictment, information, or other lawful way, such person shall be incapable to bear his office, and shall 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 restrained of his!➡ king in person, or by warrant of the council board, or of bety evitrary to his ac', shall any of his majesty's privy council, every person so re- have 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 s. 7. s. 8. for default. 8. 9. To what com is this ac wall extend. 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 inade, shall proceed to determine whether the cause of commitment be just, and shall thereupon do what to justice shall appertain. And if any Treble damages thing shall be wilfully done or omitted by any judge, officer, &c. contrary to the direction hereof, such offender sball forfeit to the party grieved his treble damages, to be recovered as aforesaid. By s. 9. this act shall extend 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. (an act restoring to the crown the ancient jurisdiction 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 1 Eliz. c. 1, Eng. by colour of which they acted, and enacts, that no s. 10. actions, &c. Court abolished. 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, 8 Oct. 1703. vide 3 Com. Journ. p. 40. 31 Car. 2. c. 2. Illegal impri sonments bey d 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. c. 2. Eng. declares, that the commission for erecting the late court 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 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 damages 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 disabled to bear any office |
