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18 Can. B. Rev. 172 (1940)
Habeas Corpus Cum Causa - the Emergence of the Modern Writ - II

handle is hein.journals/canbarev18 and id is 186 raw text is: 172 HABEAS CORPUS CUM CAUSA - THE EMERGENCE OF THE MODERN WRIT- II I Until about 1640 habeas corpus had had only a limited effect on the judicial and administrative powers of the Council. And when that body occasionally did submit to the common law courts there was always the Star-Chamber in the background capable of stepping in and executing the executive will. Chambers' Case' had illustrated this neat machinery and the House was realizing that the system of commitments for reasons of state, combined with judicial indifference in proper cases, required legislative attention. Moreover, in civil commitments where a corpus cum causa ad faciendum et recipiendum issued, the courts would never have been satisfied with a bare return that the prisoner was held at the command of another court. In fact, the entire early history of corpus cum causa turned on this point, namely, that the tribunal awarding the writ demanded the details of time, place, and reason for the arrest and the deten- tion, and would not be put off with a recital of the mere act of arrest at the instance of some other authority.2 But because of the political considerations inherent in these special commit- ments by the King or his Council the courts of common law were probably influenced by the historic right of the monarch to imprison when the exigencies of state so required.' Thus they refrained from inquiring too deeply into these cases, although from the most ancient times they could have bailed even in cases of treason.4 So it was to combat the problems arising out of the judicial authority of the Council and the Court of Star Chamber, as well as to meet the relative ineffectualness of the writ of habeas corpus ad subjiciendum in what might be termed politico-criminal detentions, that the Habeas Corpus Act of 16411 was framed. Like the Petition of Right before it, the Act opens with a statement of the liberties and privileges of -the subject that * The first part of the present article appeared in (1940), 18 Can. Bar Rev. 10. 1 (1629), Cro. Car. 133; WHITLOCK, MEMORIALS OF THE ENGLISH AFFAIRS (1687) 11, 13. 2 Frequently Judges delayed the granting of the writ in these cases. See Darnel's Case (1627) 3 St. Tr. 1. 3 See the argument of Attorney-General Heath in (1627), 3 St. Tr. 304, 325, where he claims for the King a reserve of power, an absolute potesta, which overrides the claims of the common law. 4 1 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883) 243. 6 (1641), 16 Car. I c. 10.

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