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same are by their said majesties, by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled, and by the authority of the same, declared, enacted, and established accordingly.
XII. And be it further declared and enacted, by the authority aforesaid, That from and after this present session of parliament, no dispensation by non obstante of, or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill, or bills, to be passed during this present session of parliament.
XIII. Provided, that no charter or grant, or pardon granted before the three and twentieth day of October, in the year of our Lord one thousand six hundred and eighty-nine, shall be any way impeached or invalidated by this act, but that the same shall be and remain of the same force and effect in law, and no other, than as if this act had never been made.*
THE Habeas Corpus act has been justly celebrated as the preserver of British liberty. It is so called because it begins with the words Habeas corpus ad subjiciendum, but the title of the act in the statute book is, "An Act for better securing the liberty of the subject, and for prevention of imprisonment beyond the seas." This writ being one of high prerogative, must issue from the court of king's bench; its effects extend equally to every county; and by it the king requires the person who holds one of his subjects in custody, to carry him before the judge, with the date of the confinement, and the cause of it, in order to discharge him, according as the judge shall decree. But this writ, which might be a resource in cases of violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all against the prince's prerogative, especially under the sway of the Tudors. And even in the first year of Charles I. the judges of the king's bench, who, in consequence of the spirit of the times, and of their holding their places durante bene placito, were constantly devoted to the court, declared, "" that they could not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council.
* Statutes at Large.
Those principles and the mode of procedure which resulted from them drew the attention of parliament: and in the bill called the Petition of Right; passed in the third year of the reign of Charles I. it was enacted, that no person should be kept in custody, in consequence of such imprisonment. But the provisions of this act was liable to evasion and abuse: though the judges did not refuse to discharge a man imprisoned without a cause, yet they could use so much delay in the examination of the causes, that thereby the full effect of an open denial of justice could be obtained. To remedy this the legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles I. the same in which the star chamber was suppressed, it was enacted, that, “if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without delay upon any pretence whatever, a writ of Habeas Corpus and that the judge shall thereupon, within three court days after the return is made, examine and determine the legality of such imprisonment." This act seemed to prevent the possibility of future evasion: yet it was evaded still; and, by the connivance of the judges the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him.
All these different artifices at length gave birth to the famous act of HABEAS CORPUS in the thirty first year of the reign of Charles II. which is considered in England as a second Great Charter and has extinguished all the resources of oppression. Its principle provisions are, 1. To fix the different terms for bringing a prisoner, those terms are proportioned to the distance, and none can in any case exceed twenty days, 2. That the officer and keeper 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, or shifting the custody of the prisoner from one to another, without sufficient reason or authority, shall, for the first offence, forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office, 3. No person, once delivered by habeas corpus, shall be re-committed for the same offence, on penalty of five hundred pounds, 4. Every person committed for treason or felony, shall, if he require it, in the first week of the next term, be indicted in that term or session, or else be admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be produced at that time and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence. 5. Any of the twelve judges or the lord chancellor, who shall deny a writ of habeas corpus, on sight of the warrant, or on oath that the same is refused, shall severally forfeit to the aggrieved party five hundred pounds, 6. No inhabitant of England (except persons contracting, or convicts praying to be
transported,) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions; on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved, a sum not less than five hundred pounds, to be recovered with treble costs-shall be disabled to bear any office of trust or profit-shall incur the penalties of a premunire, and be incapable of the king's pardon. *
TRIAL BY JURY.
THE trial of civil and criminal causes by a jury of twelve men, appears to have been introduced by William the Conqueror, and given by him as an inestimable inheritance to England for all generations, and which is now considered the birthright of every Briton, yet originally it was the spontaneous and free gift of the crown; and as the hearts of kings are in God's keeping, He prompts them to confer benefits on their subjects, which preserves justice and prevents oppression and violence. William was attached to all his Norman customs, and introduced them into England. This custom was not established at first by any positive statute, but came into use by slow degrees, and was far from being common, for almost all causes were tried by the senseless method of ordeals, which were of several sorts. But in the reign of Henry II., a law was made allowing the defendant in criminal or civil processes, to defend his innocence, or his right, either by battle or by a jury of twelve men, called the grand assize; the trial by jury, being the most rational, became more and more frequent, till at length it completely eclipsed its barbarous rival the judicial combat, and all other ordeals. The Conqueror without doubt destroyed the freedom and liberty of the English, but by the grant of trials by jury he planted the germ of English freedom, which was fully accomplished by the famous act of the 12 Charles II., from whence may be dated the re-establishment of the church and monarchy, and the restoration of that liberty for which the English nation had struggled ever since the era of the conquest. By the act just named, Charles II. removed all the slavish tenures, the badge of foreign dominion, with all their oppressive appendages, from encumbering the estates of the subjects: and also an additional security of his person from imprisonment was obtained by that great bulwark of our constitution, the habeas corpus act. These two statutes, with regard to our property
* Blackstone, De Lolme,-Statutes at Large.
and persons, form a second magna charta, more beneficial and effectual than that conceded by king John at Runnymede.
Trials by jury in civil causes, are of two kinds; ordinary and extraordi
Jurors returned by the Sheriff are either special or common jurors. Special jurors were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases upon motion in court, and a rule granted thereupon, to attend the prothonotary or other proper officer, with his freeholder's book, and the officer is to take, indifferently, forty-eight of the principal freeholders, in the presence of the attorney on both sides, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.
A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II. c. 25, which appoints that the sheriff or officer shall not return a separate panel for every cause, as formerly, but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight, nor more than seventy-two jurors: and that their names being written on tickets, shall be put into a box or glass, and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused, or unless a previous view of the messuages, lands, or place in question, shall have been thought necessary by the court; in which case, six or more of the jurors returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, shall be appointed by special writ of habeas corpora or distringas, to have the matter in question shown to them by two persons named in the writ, and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors.
As the jurors appear when called, they shall be sworn, unless challenged by either party. Challenges are of two sorts, challenges to the array, and to the polls.
Challenges to the array are at once an exception to the whole panel, in which the jury are arrayed or set in order by the sheriff in his return, and they may be made upon account of partiality or some default in the sheriff, or his under officer who arrayed the panel. Also, though there be no personal objection against the sheriff, yet if he arrays the panel at the nomination or under the direction of either party, this is good cause of challenge to the array. The array by the ancient law may also be challenged, if an alien be party to the suit, and upon a rule obtained by his motion to the court for a jury de medietate linguæ, such a one be not returned by the sheriff pursuant to the statute 28 Edward III. c. 13, en
forced by 8 Henry VI. c. 29, which enact that when either party is an alien born, the jury shall be one half denizens, and the other aliens, for the more impartial trial. But where both parties are aliens, no partiality is to be presumed to one more than another; and therefore it was resolved soon after the statute 8 Hen. VI. that when the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of the statute 27 Ed. III.) the jury shall be denizens.
Challenges to the polls, in capite, are exceptions to particular jurors. Challenges to the polls of the jury, (who are judges of fact,) are reduced to four heads by Sir E. Coke, propter honoris respectum, propter defectum, propter affectum, and propter delictum.
1. Propter honoris respectum; as if a lord of parliament be empannelled on a jury, he may be challenged by either party, or he may challenge himself.
2. Propter defectum; as if a juryman be an alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. But the principal deficiency is defect of estate, sufficient to qualify him to be a juror. This depends upon a variety of statutes. By the statute 4 and 5 W. and M. c. 24, it was raised to £10 per annum in England, and £6 in Wales, of freehold lands or copyhold, which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Ric. III. c. 4, and 9 Hen. VII. c. 13. And lastly, by statute 3 Geo. II. c. 25, any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of £20 per annum over and above the rent reserved, is qualified to serve upon juries. When the jury is de medietate linguæ, i. e. one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be cause of challenge to the alien; for as he is incapable of holding any, this would totally defeat the privilege.
Jurors may be challenged, propter affectum, for suspicion of bias or partiality. This may be either as a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree, that he hath been an arbitrator on either side, that there is an action depending between him and the party, that he has taken money for his verdict, that he has formerly been a juror in the same cause, that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corpora tion with him; all these are principal causes of challenge, which, if true, cannot be overruled, for jurors must be omni exceptione majores. Chal