Habeas Corpus Bill of 1758
Encyclopedia
The Habeas Corpus Bill of 1758 was a failed bill
that would have extended habeas corpus
if passed.
The Habeas Corpus Act 1679
confirmed the common law
tradition that subjects had a right to a writ
of habeas corpus. However judges ruled that those impressed
were exempt from the right to habeas corpus. The Chief Justice
Lord Mansfield
was in favour of this exemption but the Attorney-General
Charles Pratt
was not. Pratt, a "uniform Whig
", prepared a bill for expanding habeas corpus, the object of which "was to extend the Act of 1679 so as to give the benefit of the writ of Habeas Corpus ad subjiciendum, as improved by that Act, to persons who were imprisoned otherwise than on a criminal charge".
It was introduced into the House of Commons
(with its first reading on 8 March) where William Pitt the Elder
and the Speaker
Arthur Onslow
supported it and "the majority of the house cheerfully promoted it". The Duke of Newcastle
tried on 10 March to dissuade Pitt from supporting it, but was met with "a history lesson on the Petition of Right
".
It passed easily through the Commons, with its third reading on 24 April, but there was no division
at any stage. It reached the House of Lords
, where it was read for the first time on 25 April and ordered to be printed, with its second reading on 9 May. Lord Hardwicke
asked the judges for their opinions. Lord Temple protested that it was improper to inquire into the opinions of judges because such an opinion would be effected by the bill's proposal to inflict penalties on judges if they refused the writ. Hardwicke said that at a time when civil authority wanted the utmost support it would be wrong to pass the bill. Lord Granville initially spoke for the bill until learning "how unwelcoming it was at St James's
". Lord Mansfield and the Duke of Newcastle (appearing "in the full vigour of his nonsense") opposed it. The rest of the judges' views were inconclusive and so on 2 June Mansfield made a 2½ hours' speech against the bill, which Horace Walpole
described:
Hardwicke argued that all judges should have power to issue the writ "and said that he would move to order the judges to bring in such a bill against the next session. Lord Temple's friends seemed glad to catch at this proposal; and bill was heard of no more!" When Pitt heard of its rejection in the Lords, he remarked that "it was more honourable to be an Alderman of the City of London than a peer".
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
that would have extended habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
if passed.
The Habeas Corpus Act 1679
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...
confirmed the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tradition that subjects had a right to a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of habeas corpus. However judges ruled that those impressed
Impressment
Impressment, colloquially, "the Press", was the act of taking men into a navy by force and without notice. It was used by the Royal Navy, beginning in 1664 and during the 18th and early 19th centuries, in wartime, as a means of crewing warships, although legal sanction for the practice goes back to...
were exempt from the right to habeas corpus. The Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
Lord Mansfield
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...
was in favour of this exemption but the Attorney-General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
Charles Pratt
Charles Pratt, 1st Earl Camden
Charles Pratt, 1st Earl Camden was an English lawyer, judge and Whig politician who was first to hold the title of Earl of Camden...
was not. Pratt, a "uniform Whig
British Whig Party
The Whigs were a party in the Parliament of England, Parliament of Great Britain, and Parliament of the United Kingdom, who contested power with the rival Tories from the 1680s to the 1850s. The Whigs' origin lay in constitutional monarchism and opposition to absolute rule...
", prepared a bill for expanding habeas corpus, the object of which "was to extend the Act of 1679 so as to give the benefit of the writ of Habeas Corpus ad subjiciendum, as improved by that Act, to persons who were imprisoned otherwise than on a criminal charge".
It was introduced into the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
(with its first reading on 8 March) where William Pitt the Elder
William Pitt, 1st Earl of Chatham
William Pitt, 1st Earl of Chatham PC was a British Whig statesman who led Britain during the Seven Years' War...
and the Speaker
Speaker of the British House of Commons
The Speaker of the House of Commons is the presiding officer of the House of Commons, the United Kingdom's lower chamber of Parliament. The current Speaker is John Bercow, who was elected on 22 June 2009, following the resignation of Michael Martin...
Arthur Onslow
Arthur Onslow
Arthur Onslow was an English politician. He set a record for length of service when repeatedly elected to serve as Speaker of the House of Commons, where he was known for his integrity.-Early life and education:...
supported it and "the majority of the house cheerfully promoted it". The Duke of Newcastle
Thomas Pelham-Holles, 1st Duke of Newcastle-upon-Tyne
Thomas Pelham-Holles, 1st Duke of Newcastle-upon-Tyne and 1st Duke of Newcastle-under-Lyne, KG, PC was a British Whig statesman, whose official life extended throughout the Whig supremacy of the 18th century. He is commonly known as the Duke of Newcastle.A protégé of Sir Robert Walpole, he served...
tried on 10 March to dissuade Pitt from supporting it, but was met with "a history lesson on the Petition of Right
Petition of right
In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
".
It passed easily through the Commons, with its third reading on 24 April, but there was no division
Division (vote)
In parliamentary procedure, a division of the assembly is a voting method in which the members of the assembly take a rising vote or go to different parts of the chamber, literally dividing into groups indicating a vote in favour of or in opposition to a motion on the floor...
at any stage. It reached the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, where it was read for the first time on 25 April and ordered to be printed, with its second reading on 9 May. Lord Hardwicke
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
asked the judges for their opinions. Lord Temple protested that it was improper to inquire into the opinions of judges because such an opinion would be effected by the bill's proposal to inflict penalties on judges if they refused the writ. Hardwicke said that at a time when civil authority wanted the utmost support it would be wrong to pass the bill. Lord Granville initially spoke for the bill until learning "how unwelcoming it was at St James's
St. James's Palace
St. James's Palace is one of London's oldest palaces. It is situated in Pall Mall, just north of St. James's Park. Although no sovereign has resided there for almost two centuries, it has remained the official residence of the Sovereign and the most senior royal palace in the UK...
". Lord Mansfield and the Duke of Newcastle (appearing "in the full vigour of his nonsense") opposed it. The rest of the judges' views were inconclusive and so on 2 June Mansfield made a 2½ hours' speech against the bill, which Horace Walpole
Horace Walpole, 4th Earl of Orford
Horatio Walpole, 4th Earl of Orford was an English art historian, man of letters, antiquarian and Whig politician. He is now largely remembered for Strawberry Hill, the home he built in Twickenham, south-west London where he revived the Gothic style some decades before his Victorian successors,...
described:
I am not averse to own, that I never heard so much argument, so much sense, so much oratory, united. His deviations into the abstruse minutiae of the law, served but as a foil to the luminous parts of the oration. Perhaps it was the only speech, that, in my time at least, had real effect, that is, convinced many persons. Nor did I ever know how true a votary I was to liberty, till I found that I was not one of the number staggered by that speech.
Hardwicke argued that all judges should have power to issue the writ "and said that he would move to order the judges to bring in such a bill against the next session. Lord Temple's friends seemed glad to catch at this proposal; and bill was heard of no more!" When Pitt heard of its rejection in the Lords, he remarked that "it was more honourable to be an Alderman of the City of London than a peer".