cates an opinion, on the part of those who wished to make them an exception, that the matter was tolerably safe according to the true construction of the statute as it stood. It is certainly rather singular, that although Parliament deliberately rejected the proposition to except loans from the Bill, yet almost immediately after the Act passed, we find loans contracted to which members of the House of Commons notoriously contributed, yet retained their seats without question. As to this point, the interesting evidence given to the committee by Mr. James Wilson, the Secretary to the Treasury, is clear and conclusive. The only mode which occurs to us of accounting for the inconsistency, is that which was suggested during the recent argument by the Attorney-General. It appeared from Mr. Wilson's statement, that although the Act passed in 1782, and loans were raised in 1783, 1794, and several subsequent years, yet that no memorandum of any contract for a loan prior to 1801 could be discovered in the records of the Treasury. All that appeared to have been done in the case of the loans contracted for the first nineteen years after the passing of the Act was, that there were lists of the contributors. These lists-mere rolls of names, with the sums subscribed set opposite-have been preserved, and were produced to the committee. "May not the fact," suggests the Attorney-General, "of there having been no agreement, but simply a list of contributors, arise from the circumstance that it was a contrivance, resorted to for the express purpose of avoiding the consequences of the Act?" The explanation appears not improbable; it affords, at least, some solution of a striking inconsistency. The whole subject well deserves further elucidation. We shall be glad if the observations we have now offered in any degree contribute to that result.

G. K. R.

ART. III.-SOME REMARKS ON THE WRIT OF HABEAS CORPUS AD SUBJICIENDUM, AND THE PRACTICE CONNECTED THERE WITH.

TH

HE liberty of the subject has from the earliest time been protected by our common law, as evidenced by the celebrated 29th chapter of Magna Charta, which declares (for it is but declaratory of the law) that, "No freeman shall be taken or imprisoned, or disseised of his freehold or liberties, &c., or be any otherwise destroyed, &c.," nisi per legale judicium parium suorum vel per legem terræ. "No man," says Lord Coke in his commentary upon the above chapter of Magna Charta, "shall be taken, i. e., restrained of liberty, by petition or suggestion to the King or his Council, unless it be by indictment, or by presentment of good and lawful men" (2 Inst. 46). Thus much as to the great principle of personal freedom recognised by our law. Then as to the remedy for its invasion. "If," says the same authority (4 Inst. 290), speaking of the forest laws, "if it be demanded-what if a man be unjustly imprisoned under colour of those laws, and afterwards offer sufficient pledges, and they be not taken, what remedy is there for the plaintiff? The answer is, that in the term time he may have, ex merito justitiæ, a habeas corpus out of the King's Bench, or out of the Court of Common Pleas, or of the Exchequer; or out of the Chancery, either in term time or vacation; and upon the return of the writ he shall be bailed." So in the Institute just cited (fo. 182), after designating as "odious " the unjust imprisonment or detaining of any freeman in prison; after mentioning various remedies now obsolete which "the law hath allowed for the relief and ease of the prisoner," Lord Coke adds, " but the readiest way of all is by habeas corpus, in the term time, or in vacation, out of Chancery." And to return once more to the 2nd Inst. (fo. 55), we there read: "Now it may be demanded, if a man be taken or committed to prison, contra legem terræ, what remedy hath the party grieved? To this it is answered

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Some Remarks on the Writ of Habeas Corpus, &c. 1st, That every Act of Parliament made against any injury, mischief, or grievance, doth either expressly or impliedly give a remedy by action to the party wronged. 2ndly, The party falsely imprisoned may indict for the injury done him. 3rdly, He may have a habeas corpus-upon which writ the gaoler must return by whom his prisoner was committed, and the cause of his imprisonment; and if it appeareth that his imprisonment be just and lawful, he shall be remanded to gaol; but if it shall appear to the Court that he was imprisoned against the law of the land, they ought, by force of this statute (Magna Charta), to deliver him; if it be doubtful, he may be bailed.

Various cases, ancient and modern, both prior to and since the Habeas Corpus Act, might be cited to show that the writ of which we are now speaking lies at common law. "This invaluable writ," says Lord Campbell (Ex parte Sandilands, 21 L. J., Q. B. 342), "could always be obtained where a person had been improperly deprived of liberty. From the earliest times, before the Habeas Corpus Act, a writ issued in such cases, calling upon the party detaining to show if any just cause existed for the detention-but this was always on the supposition that liberty was interfered with."

In Thomlinson's Case (12 Rep. 101), we have an instance of habeas corpus at common law. It there appears that the said Thomlinson had been committed by the Court of Admiralty for refusing to answer on his oath to certain interrogatories proposed to him in a suit there instituted; and accordingly he brought his habeas corpus, to which the marshal of the prison of the Admiralty returned, that his prisoner "had contumaciously refused to submit himself to examination;" and this return was held to be insufficient, on the ground that it was too general, and because it did not specify for what cause or matter the prisoner had been examined. (See also Bourn's Case, Cro. Jac. 543; a mem. in Cro. Car. 466, for allowing prisoners confined in certain gaols who could give bail to go at large when the plague was prevalent in London; Ex parte Besset, 6 Q.B.481). Long, indeed, before the time of Coke the writ of habeas corpus may be clearly proved to have been in use, and in the reign of Henry VI. "it seems to have been familiar to, and

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well understood by the judges," as remarked by Mr. Fry, in his learned and interesting dissertation upon the writ of habeas corpus, prefixed to his Report of the Canadian Prisoners' Case, p. 7. (Reported also as Leonard Watson's Case, 9 Ad. & E. 731; and Re Parker, 5 M. & W. 32.)

An examination of precedents has moreover shown that the remedy by habeas corpus was originally used as between subject and subject, rather than by a subject against the Crown; but from the reign of Henry VII. cases are to be met with in which the writ was sued against the Crown; and in the reign of Charles I. the arguments in Sir Thomas Darnell's Case, 3 State Trials, p. 1, show that the nature of this writ as an admitted constitutional remedy was at that time well appreciated. The case just cited, as the learned reader need not be reminded, led the way to the Petition of Right (3 Car. 1, c. 1), which contains an emphatic protest against the denial of the writ of habeas corpus, and against illegal imprisonment thereby occasioned. (See ss. 5, 10; see also Hallam's Constitutional History, vol. 1, p. 414, &c.)

The writ of habeas corpus ad subjiciendum, with which we are on this occasion exclusively concerned, is, to use the words of Blackstone," the great and efficacious writ in all manner of illegal confinement. It is directed to the person detaining another, and commands him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or Court awarding such writ shall consider in that behalf." (3 Bla. Com. 131.) In order, however, to justify issuing the writ at common law, it must be shown that liberty is being interfered with that the party on whose behalf the application professes to be made is coerced, and not a free agent. The writ in question accordingly will not be granted on the application of a man to bring up the body of his wife, unless it be shown that she is under coercion, or subjected to imprisonment-this case obviously differing from that of an infant, whose parent has the right to the custody of the child, so that if of tender years the Court will order it to be delivered to the father-but the husband has at common law no such right to the custody of his wife (Ex parte Sandilands, 21 L. J.

Q.B. 342). Re Hakewill (12 C. B. 223), indeed, is a distinct authority to show that the father is legally entitled to the custody of his legitimate infant children. "The case of illegitimate children obviously stands upon a totally different footing" (Id. per Cresswell, J.). In Re Lloyd (3 M. & Gr. 547), a writ of habeas corpus had been obtained by the mother of an illegitimate female child, for the purpose of bringing her up from the custody of a party with whom she had been placed by her putative father. The child, about eleven years of age, was thereupon brought into Court in obedience to the writ, and was asked if she wished to go with her mother, and expressing a disinclination to do so, was allowed to retire with her attendant. This case forcibly illustrates the general rule that a habeas corpus will be granted only where the party on whose behalf it is applied for is under coercion or restraint. So in Ex parte Child (15 C. B. 238), a rule having been obtained or a habeas corpus to bring up a lunatic, confined in an asylum in this country under Irish medical certificates, the Court discharged it with costs, there being no affidavit to show that the party promoting the application was duly authorised by the lunatic. "A mere stranger," remarked the Chief Justice of the Common Pleas, "has no right to come to the Court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint."

There does not appear, however, to be any technical or arbitrary restriction in regard to the purposes for which the writ which we are now considering may issue. It is due to any person complaining of unlawful detention, and is employed for the purpose of removing prisoners, of bringing them up to be bailed-of bringing up infants improperly detained, &c. &c. (Re Belson, 7 Moore, P. C. Cas. 114); the form of writ of habeas corpus having anciently varied according to the precise object for which it was required. Before the writs were in English, when the object was to remove a prisoner, this writ was expressed to be ad faciendum et recipiendum, &c.; "to do and receive, &c.," as is now expressed in the writs issued by the Courts of Common Law for the like purpose.