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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: 


              OF  THE   MODERN WRIT- II

     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.
    6 (1641), 16 Car. I c. 10.

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