CHARLES II. 1649-1685. Judges assumed discretionary power in grant ing the writ of habeas corpus. 15. Habeas Corpus Act. Although the common law had provided the writ of habeas corpus, and the Petition of Right had renewed and extended the provisions of Magna Charta against arbitrary imprisonment, yet their benefits had been curtailed to gratify the lusts of ambition. The judges had assumed the power of granting or refusing the writ at discretion; the sheriffs and keepers invented pretexts to elude obedience; and the privy council hesitated not to send an obnoxious individual into some of the king's foreign dominions, and consequently beyond the jurisdiction of the courts'. These evils were so apparent, that parliament were obliged to restore the ancient law for the protection of liberty, and which was productive of Stat. 31 Charles II. c. 2, commonly called the "Habeas Corpus Act." It makes the granting of The judges bound the writ upon a sight of the copy of the warrant of commitment, or an affidavit that a copy is denied, and the acceptance of bail for offences bailable by law, imperative on the chancellor and the judges, even during the time of vacation; except for persons convicted, or in execution, upon legal process, or where treason and felony are clearly expressed in the warrant of commitment. to receive bail, in all bailable offences. Production of gaoler. Under this writ, the gaoler must produce in court the body prisoners by the of the prisoner, and certify the cause of his detainer and imprisonment; if the gaol lie within twenty miles of the judge, the writ must be obeyed in three days, and so proportionably for greater distances, but in no case exceeding twenty days. Refusal of the mitment by the gaoler. A gaoler refusing his prisoner a copy of the warrant of warrant of com- commitment, or not obeying the writ, is subjected to a penalty of 100l. to the aggrieved; and for the second offence 2007., and incapacitated from holding office; and even the judge illegally denying the writ, is liable to the penalty of 5007. at the suit of the party injured. Indictment of the prisoner. Every prisoner must be indicted the first term after his commitment, and brought to trial in the subsequent term; and no person, after being enlarged by order of the court, can be re-committed for the same offence. 1 6 State Trials, 1189. 4 Parl. Hist. 661, 1148. 3 Hallam's Const. Hist 14. 8 Lingard, 119. 8 Hume, 107. 1 Black. Com. 128, 135. Ibid. iii. 135, 354. 1649-1685. Practice of sendof the country ing persons out before trial, abolished. III. c. 100, extended the au The statute likewise abolished the practice of sending CHARLES II. persons out of the country, and consequently out of the jurisdiction of the courts, by making such expatriation an offence subject to the most rigorous penalties, and rendering the offender incapable of receiving pardon from the sovereign. The 56 George III. c. 100, has not only extended the Stat. 56 George power of issuing the writ during the vacation, in cases not within Stat. 31 Charles II. c. 2, to all the judges, but enables the judge, before whom the writ is returned, to inquire into the truth of facts alleged therein; and in case they shall seem to him doubtful, to release the party in custody, on giving surety to appear in the court to which such judge shall belong, on some day in the ensuing term, when the court may examine by affidavit into the truth of the facts alleged in the return, and either remand or discharge the party according to its discretion. thority of the Stat. 31 Charles judges under II. c. 2. discretion of any man, is the law of tyrants. It is impossible to question the wisdom of these enactments, The arbitrary for where the liberty of the subject is concerned, the landmarks, by which the discretion of the committing magistrate is to be regulated, should be accurately defined, and positive in their nature; for the arbitrary discretion of any man is the law of tyrants, it is always unknown, it is different in different men, it is casual, and depends upon constitution, temper, and passion in the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. 16. Quo Warranto Informations. The power which principally opposed the court, was that which resided in corporate cities, and as long as it existed, the papistical and tyrannical doctrines of the House of Stuart could never succeed; consequently, every exertion was re- Every exertion sorted to by the king in order to acquire an uncontrolled ascendancy over them'. to influence the inhabitants of corporate cities, &c. "select bodies." The policy of Elizabeth was pursued, by the creation of Creation of "select bodies" in the corporations, that is, by illegally wresting from the inhabitant householders their constitutional municipal elective rights, and vesting such franchises with the power of admitting non-residents in a few individuals, whose qualifications exclusively consisted in an utter subserviency to 1 Echard, 1043, 1045. Bulstrode, 388. North, 624–627. 1649-1685. CHARLES II. everything that was infamous and degrading:-from the effects of such policy arose the necessity for the recent " Municipal Corporation Act." Corporation Act of 1661 produc The 13 Charles II. c. 1, for the "well-governing and tive of mischief. regulation of corporations," was productive of great mischiefs, as it afforded an excuse and precedent for non-residence; the commissioners removing those persons who had been illegally placed in office by the commons, and substituting in the stead of several of them, some of the great officers of state, and these instances were subsequently cited in order to support the claims of the non-residents. Alterations in the municipal records. Charter to Liverpool. Origin of the doctrine, that It is however a fact, which justifies a suspicion of fraud in order to veil the illegal origin of "non-residents," that the admission books in most of the boroughs, previous to 1660, are destroyed, and commence at a period when non-residents were permitted to exercise the rights of burgess-ship. In 1677, the king granted a charter to Liverpool, which appointed a common council of sixty persons therein nominated, thirty of whom, together with the mayor and bailiffs, were to have power to elect and name the mayor, bailiffs, common council, and freemen of the town, thereby placing the whole power in their hands. The burgesses protested against this grant, and several of the common councilmen nominated, in the charter, refused to act under it, and tumults took place in the town. But the spirit of the times stifled all opposition, and the common council continued to exercise the whole authority till the charter of William III. Charters of this nature were introductory of the general doctrine, that" municipal rights and privileges exclusively depended upon charters of incorporation, and that such charnulled as pleased ters might be surrendered, granted, and annulled as pleased municipal charters may be granted and an the crown. The modes in which surrenders the crown;" and from the proclamation for the restoration of corporations by James II., in the fourth year of his reign, 1679 appears to be the period at which great irregularities in the granting of charters were committed. It was requisite for Charles II., previous to his giving charters embodying the foregoing principles, that the governing charters should be surrendered, and Chief Justice Jefferies and Earl Bath were two of his most powerful and unprincipled tools. The manner in which surrenders were obtained, was by 1649-1685. charters were fraud and violence; thus, in Thetford, the mayor was detained CHARLES II. in prison until he procured the surrender of the charters,which he effected, although there were seventeen against the of municipal surrender, and only fourteen in favour of it; but the former obtained. were never summoned when the surrender was agreed upon: and the mayor, in order to procure an assembly of the requisite number, admitted his son, a boy under sixteen years of age, and an excommunicated person, as members of the corporation. If, however, neither the king nor his ministers could by means of falsehoods or threats prevail on the burgesses to surrender their charters, informations of quo warranto were filed against them. Thus Roger North, in his Life of the Lord Keeper Guildford, says," Either to court or frighten harmless or orderly corporations to surrender, or upon refusal to plunge them in the chargeable and defenceless condition of going to law against the crown, whereby that which would not come by fair means, was extorted by violence'." Roger North also says, "that the trade of charters ran to excess, and turned to an avowed practice of garbling corporations for the purpose of carrying elections to the parliament." Chief Justice Jefferies, when on circuit as a criminal judge, by threats and machinations compelled Lincoln and other towns to surrender their charters. In the debate which arose on the Corporation Bill, in the reign of William and Mary, Sir Thomas Clarges stated, that he knew a corporation of 600l. per annum advised by Jefferies to surrender, or else, if judged against, the lands would go to the next heir of the grantor. Sir William Williams, in the same discussion, said," that in some corporations of six hundred who had a right to give consent to a surrender, not above thirty-four were for it, and they prevailed. And how came this about?-this was a packed common council by Lord Jefferies." But for such proofs of loyalty, and triumph over national freedom, Jefferies was received by Charles II. at Windsor, as one of the most distinguished ornaments of the bench3. The Earl of Bath was equally industrious in the West, and returned from Cornwall only the day after the king's death with powers of attorney to surrender the charters of thirteen 2 Roger North, in his Life of Lord Keeper Guildford, 115. 3 3 Kennet, 423. M. & S. Hist, Boroughs, 1689—1943. 1649-1685. CHARLES II. or fourteen boroughs: and he was said to have "no less than fifteen charters, so that some called him the Prince Elector,' and he put into those charters for Cornwall the names of various officers of the guards." National privileges in a state of insecurity. The plan of influencing the commons by bribes, reduced to a regular system. Insidious at an absolute monarchy. These proceedings, as Hume correctly observes, "left no national privileges in security, but enabled the king, under like pretences, and by means of like instruments, to recal anew all those charters which at present he was pleased to grant. And every friend to liberty must allow, that the nation, whose constitution was thus broken in the shock of faction, had a right by every prudent expedient, to recover that security, of which it was so unhappily bereaved"." 17. Attempts to create an Absolute Monarchy. 6 Lord John Russell observes', that, "It was in this reign that the plan of influencing the members of the Lower House by gifts and favours of the crown was first systematically framed. The name of Pensioner Parliament,' given to the House of Commons which sate for seventeen years without dissolution, is a sufficient index of the general opinion concerning it. Many of the poorer members sold their vote for a very small gratuity. Offices and favours were granted to the speakers most worth buying; the rest were glad of a sum of money. The trifling sum of 12,000l. was allowed by Lord Clifford, for the purpose of buying members. This was increased by Lord Danby. By the report of a committee of secrecy appointed in 1678, it appears that many members received money or favours of one kind or another for their votes. "There can be no doubt that the practice was continued during the reign of William. Sir John Trevor was convicted, when speaker, of receiving bribes from the city of London, to procure the passing of the Orphans' Bill. Mr. Hungerford was expelled for the same offence." In addition to these practices, there was every insidious tempts to create attempt to create an absolute monarchy; and for the consummation of such base and infamous ends, scarcely any circumstances could have been more favourable than the "popish plot," the "insurrections of Russell and Sydney," and the Essay on the English Government, 186, ed. 1821, M. and S. Hist. Boroughs, 1887, 1888. |