The defendant was captain and owner of a trading vessel, and lived at North Shields. He was tried at the assizes for the county of Durham for perjury, and found guilty. The circumstances of the case were as follow:—
His brother, John Bragge, was impressed from on board his ship, and an application having been made to the Court of King's Bench for a writ of Habeas Corpus to have him discharged from the King's service, into which he had been so impressed, it became necessary that the affidavit should state that he, John Bragge, had not been at sea, or in his majesty's service before; which affidavit was made by the defendant; whereas in truth, and in fact, he, the defendant, well knew that John Bragge had been twice in the royal navy before. This was fully proved, and upon that proof the defendant was found guilty.
Mr. Justice Le Blanc, in the absence of Mr. Justice Grose, in an eloquent manner, wherein he pronounced a well directed and emphatic eulogium upon the value of the writ of Habeas Corpus, pronounced sentence, which was—that the defendant should pay a fine of 50l. and be imprisoned in the gaol of Durham two years! Often as we have had occasion, in our former volumes, to mention the writ of Habeas Corpus, thus eulogised by this learned judge—this second Magna Charta—the barrier of the poor man against the oppression of the rich—still have we omitted to give the glorious boast of Englishmen at length. The above case forcibly reminds us of our neglect, while we are pleased to think that it is not yet too late; we therefore now perform that agreeable part of our duty, and recommend every man to imprint each line fully upon his mind.
THE STATUTE 31st CHARLES II. THUS ENACTS
THERE having been great delays used by the sheriffs, gaolers, and other officers, to whose custody the King's subjects had been committed, in making returns of writs of Habeas Corpus, &c. whereby many persons had been long detained in prison, in such cases where by law they were bailable; for prevention thereof, and the more speedy relief of all persons imprisoned for any criminal matters, it is enacted,
1. "That whensoever any writ of Habeas Corpus shall be brought and served upon any officer, or other person, for any one in his custody, or shall be left at the gaol with any one of the under-officers, the said officers or their keepers or deputies, within three days after that, (unless the commitment were for treason or felony plainly expressed in the warrant of commitment) on payment of the charges of bringing the prisoner, or tender thereof, to be ascertained by the judge or court that awarded the writ and endorsed on the same, not exceeding 12d. per mile, and upon security given by the prisoner's own bond to pay charges of carrying him back, if he be remanded by the court, and that he will not make any escape by the way, shall make return of such writ of Habeas Corpus, and bring the body of the party committed before the judges or barons of the court from whence the writ shall issue, or to such persons before whom the writ is returnable, and shall certify the true causes of his detainer or imprisonment; but if the place of imprisonment be beyond twenty miles, and not above one hundred miles off, then ten days is allowed for the same, and if further, it shall be within twenty days, and no longer.
2. "Any persons committed or detained for any crime (unless for treason or felony expressed in the warrant as aforesaid) in the vacation time, may complain to the Lord Chancellor or keeper, or any judge, who upon view of the commitment, or oath of its being denied, shall upon request by such persons, or any in their behalf, attested and subscribed by two witnesses, grant a Habeas Corpus under the seal of their respective courts, returnable immediately; and on service thereof, the officer within the times before limited is to bring up such prisoner before the said Lord Chancellor or judges, before whom the writ is made returnable, with the causes of his commitment; and thereupon, within two days after he shall be brought up, the prisoner shall be discharged from his imprisonment, on entering into recognizance with one or more sureties, to appear in the Court of King's Bench the term following, or at the next assizes, sessions, or general gaol delivery, or such other court for the county where the offence is cognizable: into which court the writ, the return, and recognizance aforesaid, shall be certified, unless it shall appear that the party is detained upon a legal process or warrant, for such matters or offences which are not bailable by law.
3. "Provided always, that if any person shall neglect to pray a Habeas Corpus for his enlargement, by the space of two terms after he is committed, he shall not have any such writ in time of vacation, in pursuance of this act.
4. "If any officer or officers shall refuse to make their returns, or to bring the body of the prisoner as aforesaid, according to the command of the writ, within the times aforesaid; or upon demand made by the prisoner, or any in his behalf, shall refuse to deliver a true copy of the warrant or commitment, within six hours after demanded, such officers, gaolers, &c, in whose custody the prisoner shall be detained, shall forfeit for the first offence 100l., and for the second offence 200l. to the party grieved, and be rendered incapable to hold their offices; the penalties to be recovered by action of debt, bill, plaint, or information, in any of the King's courts at Westminster, wherein no essoin, &c. or stay of prosecution, shall be admitted or allowed.
5. "And no person, who shall be delivered and set at large by Habeas Corpus shall be again imprisoned for the same offence, by any person other than by legal order and process of such court, wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the causes; and if any other persons shall knowingly imprison again the person delivered or set at large, they shall forfeit to the prisoner 500l. to be recovered as aforesaid.
6. "Persons committed for high treason or felony, plainly and especially expressed in the warrant, upon prayer in open court the first week of the term, or first day of the sessions of oyer and terminer or gaol-delivery, to be brought to trial, if they are not indicted the next term, sessions of oyer and terminer, or gaol delivery after such commitment, the judges upon motion made in court the last day of the term or sessions, shall set them at liberty upon bail, unless it appear upon oath, that the King's witnesses could not be produced that term or sessions; and if any such persons committed as aforesaid, upon such prayer aforesaid, shall not be indicted and tried the second term or sessions after the commitment, they shall be discharged from their imprisonment.
7. "But nothing in this act shall extend to discharge out of prison any person charged in debt or other action, or with process in any civil cause; but that after his acquittal for his crime, he shall be kept in custody for such other suits
8. "If any person or persons, subjects of this realm, shall be committed to any prison, or be in custody of any officer, for any criminal matter, the said person shall not be removed from the said custody into the custody of any other officer, unless it be by Habeas Corpus, or some other legal writ, or where the prisoner is delivered to the constable to be carried to gaol, &c. or when any person is sent by order to the house of correction, or removed from one prison to another in the same county, in order to a trial or discharge; or in case of sudden fire, infection, or other necessity. And persons making out and signing any warrants for removal, contrary hereto, or countersigning the same, and the officers obeying or executing them, shall incur the forfeitures before mentioned, both for the first and second offence, to the party grieved.
9. "And any prisoner may move for and obtain his Habeas Corpus, as well out of the Chancery or Exchequer, as out of the Courts of King's Bench or Common Pleas, and if the Lord Chancellor, or any judge or baron, shall deny any writ of Habeas Corpus required to be granted as aforesaid, they shall forfeit to the party grieved 100l. recoverable in manner aforesaid.
10. "And it is declared that writs of Habeas Corpus may run into any County palatine, the cinque ports, and other privileged places of England, and into the isles of Jersey and Guernsey.
11. "No subject of this realm shall be sent prisoner into Scotland, Ireland, or into any parts beyond the seas, which are or may be within or without the dominions of his Majesty, his heirs or successors; and if any of the said subjects be so imprisoned, it is illegal, and every such person shall for such imprisonment have an action of false imprisonment against him by whom he shall be committed, detained, imprisoned, sent prisoner, or transported, and against all persons that shall frame, contrive, write, seal, or countersign, any warrant for such commitment, or shall be advising, aiding, or assisting in the same: and shall have judgment to recover treble costs, besides damages, which damages shall not be less than 500l. in which action no delay or stop of proceedings, nor no injunction, protection, or privilege, &c. shall be allowed; and the person or persons so offending as aforesaid, being lawfully convicted thereof, shall be disabled to bear any office of trust or profit within the realm, or dominions thereunto belonging, and incur the pains, penalties, and forfeitures, ordained by the statute of praemunire made in the 16th year of Richard II. and be incapable of any pardon from the king, his heirs, or successors.
12. "This act shall not extend to any person who by contract in writing shall agree with any merchant or owner of a plantation, &c. to be transported, and shall have received earnest upon such agreement; nor to persons convicted of felony, and praying to be transported beyond the seas, who may be so transported into any parts notwithstanding this statute; nor to the imprisonment of any person before the time limited for the commencement of the act, or any thing thereto relating, nor to persons resident in this realm, that shall have committed any capital crime in Scotland or Ireland, &c. but that such persons may be sent to receive trial as before this act.
13. "And persons offending against this act shall not be impleaded for any offence, unless the same be done within two years at most after the offence was committed, in case the party grieved shall not be then in prison; and if he shall be in prison, then within two years after his delivery out of prison, or decease.
14. "After the assizes proclaimed for any county, no person shall be removed from the common gaol upon any Habeas Corpus, pursuant to this act, but shall be brought thereupon before the judge of assizes in open Court: but after the assizes are ended, any person detained may have a Habeas Corpus, according to the direction and intention of the act.
15. "If any information, suit, or action, be brought against any person or persons for offences against this law, the defendants may plead the general issue, and give the special matter in evidence; and the said matter shall be as available to all intents, as if they had pleaded or alleged the same matter in bar or discharge of such information, suit, or action.
16. "Persons appearing to be committed as accessory before the fact, to any petit treason or felony, or upon suspicion thereof, which shall be especially expressed in the warrant of commitment, shall not be re moved or bailed by virtue of this act, or in any other manner than they might have been before the making of the same."