KEVIN COSTELLO (2008) HABEAS CORPUS AND MILITARY AND NAVAL
IMPRESSMENT, 1756–1816, THE JOURNAL OF LEGAL HISTORY, 29:2, 215-251,
HABEAS CORPUS AND MILITARY AND NAVAL IMPRESSMENT, 1756-1816
At the start of the Seven Y ears’ War in 1756, there occurred an unexpected increase in
the demand by impressed soldiers and sailors for habeas corpus. This increased usage
occurred in spite of the fact that habeas corpus was a deficient mechanism of judicial
review: the scope of review was limited to formal defects appearing on the face of the
return; it was unclear whether there was jurisdiction to issue the writ during the
extensive times that the court was out of term; and there was no power to issue process of
contempt in vacation for disobedience of the writ. Notwithstanding these defects (and the
rejection by the House of Lords in 1758 of a habeas corpus bill drafted in order to
remedy those faults) the custom of using habeas corpus as an anti-impressment remedy
flourished within the Navy (and, during the short periods of statutory military
conscription, within the Army); in the late eighteenth –century it was impressed sailors
who made up the largest constituency using the writ. This account describes the scope of
review and procedure regulating impressment –related habeas corpus.
HABEAS CORPUS AND IMPRESSMENT 1700-1756
The use of habeas corpus as a means of obtaining relief from impressment increased1
during the War of Spanish Succession (1701-1714): following the enactment of the
Recruiting Act, 17052 a number of impressment-related writs of habeas corpus issued
from the King’s Bench.3 The use of habeas corpus seems, however, to have declined
1
The remedy had been also used for this purpose in the seventeenth century: see the writ of habeas corpus,
dated 25 Apr. 1694, for production of three impressed seamen, John King, James Lobb & Daniel Cock;
(The National Archives: Public Records Office (PRO) KB 16/1/ 4).
2
2 & 3 Anne, c. 13.
3
Nicholas Bolton’s case, Hil., 1705 (PRO KB 21/ 26, f. 394). Richard Mokes’s case, Hil. 1709 (Anthony
Taussig Collection (AT) MS F98, fos. 2,3). William Dibb’s case Mich. 1709 (PRO KB 16/5/1). John
Noke’s case Mich. 1709 (ibid.). Henry Reeves’s case, Mich. 1709 (AT MS F98, fo. 3). Thomas Wigg’s
case, Mich 1709 (AT MS F98, fo. 4). Finch’s case Hil. 1710 (AT MS F98, fo.4). Chamberlain’s case and
1
when impressment was introduced again during the war of Austrian Succession (17401748). There is only one case in the King’s Bench records throughout the entire period of
the War of Austrian Succession —Reynold’s case4 in 1745— where habeas corpus was
granted to an impressed soldier disputing the legality of his conscription. After the return
was filed Lee CJ issued a second order (designed to achieve more effective review of
Reynold’s complaint that he had been maliciously impressed): a rule was directed to the
Recruitment Commissioners to show cause why Reynolds should not be discharged. On
showing cause affidavits were admitted which showed that Reynolds was not liable to
conscription, and he was released.
There occurred a sudden surge in applications for habeas corpus in the subsequent
period of war, the Seven Years’ War (1756-1763). In 1756 Parliament enacted the
Recruiting Act5 empowering the recruitment commissioners to levy ‘such able bodied
men as do not follow or exercise any lawful calling or employment or have not some
other lawful and sufficient support and maintenance.’ Within months of the enactment of
the legislation the first applications for habeas corpus made by persons impressed (some
of them clearly illegally)6 under the Recruiting Act 1756 came before the court of King’s
Bench. The first of these, in Easter 1756, was made on behalf of William Hamilton,7 a
respectable wine merchant from Chelmsford8 who was obviously not liable to
conscription. That writ was processed in the ordinary way: a writ of habeas corpus issued,
the prisoner was produced and a return filed. The return was held to be deficient, so the
court did not have to consider the doctrinal issue of whether the court could exercise
judicial review over matters other than the return. But both Ryder CJ and Denison J
Morgan’s case 1710 (AT MS F98, fo. 4). The manuscripts of Foster J in the possession Mr Anthony
Taussig constitute a very important source on the earlier history of this topic. I would like to thank Mr
Taussig for his helpfulness in providing me with access to, and copies of, these papers.
4
Trin. 1745 (PRO, KB 21/36, fo. 34). In the Spring of 1758 a search of impressment-related habeas corpus
cases from the reign of Queen Anne was undertaken by the Clerk of the Rules. Reynold’s case was the only
case found for the 1740s (AT MS F98, fo.8).
5
29 Geo. II, c. 4.
6
In McKeown’s case in Trin. 1756 the conscriptee was an unfortunate Chelsea pensioner. The law officers
consented to McKeown’s release. Foster J noted ‘the Solicitor did properly in consenting ye matter might
drop easily with a good grace. For the case was a piece of high oppression and could never have stood on
strict enquiry. The man was no soldier, nor object of the Desertion Acts’ (AT MS F98, fo. 7).
7
PRO KB 21/37, fo. 492.
8
Affidavit of David Rivenall (PRO KB 1/12/4).
2
considered that even if the return had been sufficient it would have jurisdiction to
investigate the merits. Ryder CJ said that ‘the return is not good, but it appears by the
affidavits that the man is no object of the law. The court will in all these cases enter into
the merits by affidavit for the man has no other remedy.’ Denison J then drew the court’s
attention to the technique which had been used by Lee CJ in Reynold’s case, the rule to
show cause: ‘in Reynold’s case the return was good. However in that case the court did
enter into the merits upon affidavits and to that end made a rule that the Commissioners
to show cause.’9 Six months later the court adopted the procedure ―the rule to show
cause― first suggested by Denison J. in Hamilton’s case.
While preparing for Hilary term 1757 the judges of the court of King’s Bench
held a conference to discuss the rise in impressment-related habeas corpus applications. It
was resolved (following the precedent in Reynold’s case) to process habeas corpus
applications by way of a rule directed to the Recruitment Commissioners to show cause
why the impressed soldier should not be discharged. The court’s order in the case of
Charles Thacker, the first application to be processed in this way, read:10
it is ordered that Tuesday next be given to the Commissioners in and for the
county of Middlesex for putting in execution an Act of Parliament made in the
twenty ninth year of his present Majesty’s reign entitled an act for the speedy and
effectual recruiting of His Majesty’s Land Forces and Marines to show cause why
Charles Thacker should not be discharged out of the custody of Thomas Hayward
Esquire, Keeper of His Majesty’s prison of the Savoy11 in the said county, upon
notice of this rule to be given to them or some of them in the meantime …
This quotation had originally been contained in volume 23, p. 25 of a set of King’s Bench note books. The
extract was recorded in Foster’s May 1758 notes on habeas corpus (AT MS F98, fo. 7).
10
KB 21/37, fo. 582.
11
The Savoy Palace, which faced the Strand, was used in the eighteenth century as military prison for
deserters and accommodation for recruits, H. Phillips, Mid-Georgian London; a Topographical and Social
Survey of Central and Western London about 1750 , London, 1964, 158, 159.
9
3
The rule to show cause was issued on another eight occasions that term.12 In Easter term
1757 the King’s Bench issued a further eight of these rules to the Recruitment
Commissioners.13
Two considerations underlay the creation of this procedure. The first was that the
procedure by way of rule avoided the disruption caused by removal of soldiers on habeas
corpus. The most experienced justice of the King’s Bench, Foster J, explained that in
order that ‘the public service might not suffer by an abuse of the writ’ —by which he
meant the abuse of prisoners being removed from service on habeas corpus— ‘I ordered
notice to be given to the proper officers of the Crown, of the time at which the party was
to be brought before me.’14 The second objective, according to the majority of the King’s
Bench, operated to the benefit of the applicant. The rule to show cause permitted the
applicant a means of reviewing the legality of the detention which was considerably more
extensive than that obtainable on habeas corpus. Had habeas corpus issued in the ordinary
way the King’s Bench would, according to the prevailing view, have been confined to a
purely technical examination of the formal documentary sufficiency of the return. This
was defective in two respects: (i) there was no power to investigate illegality not
disclosed on the return; the court’s enquiry was solely concerned with the question of
compliance with the technical narrative required of a valid return. If the return was
technically defective the prisoner was released. If the return was technically sufficient the
prisoner was remanded. But actual illegality and a perfect return were not irreconcilable
conditions. Illegality not disclosed could not be investigated. (ii) Furthermore, the
truthfulness of an assertion contained in a return to a habeas corpus could not be
contradicted.15 The applicant’s only remedy was to take a separate, long-winded, action
for a false return. Under the rule to show cause procedure, on the other hand, the court
was enabled to conduct an evidential enquiry (on affidavit), and to hear legal submissions
John Dunn’s case; Edward Frith’s case; James Johnston’s case; Smithfield Budget’s case; James Landy’s
case; John Quarell’s case; Thomas Bond’s case; James Hawkes’s case (PRO KB 36/160).
13
John Pilpin’s case; Walter Douglas’s case; John Clowlow’s case; George Baynes’s case; John Hunter’s
case; John Thompson’s case; Godferry Isaacs’s case; Charles Saunders’s case (PRO KB 36/161).
14
M. Foster to Charles Yorke (undated, 1758) in M. Dodson ed., The Life of Sir Michael Foster, London,
1811, 51-2.
15
YB Mich. 9 Hen. VI, fol. 44 a; Bagg’s Case (1615) 11 Co Rep 93b; 77 ER 1271.
12
4
as to the substance of the prisoner’s complaint. In a defence of the rule to show cause
procedure, Wilmot J wrote that: 16
the truth of a return setting forth the execution of a special authority, jurisdiction,
or power cannot be contradicted by affidavits. It is contradictory to all the
principles and authorities of law … the court took another way: upon reading
affidavits, they made a rule upon the Commissioners to shew cause; and for want
of cause being shewn, discharged the men.
None of the existing remedies would have enabled the court to review the substantive
legality of the enlistment. Had certiorari issued (and it is not at all clear whether it could
have issued to a non-judicial body such as the Commissioners)17 the court would also
have been restricted to a review of the formal sufficiency of the order made by the
Recruitment Commissioners. On the other hand, the King’s Bench, through the rule to
show cause procedure, gave itself full jurisdiction to determine whether an error of law or
fact had been committed by the Recruitment Commissioners. The power to levy soldiers
under the Recruiting Act 1756 was restricted to men who did not ‘follow or exercise any
lawful calling or employment or have not some other lawful and sufficient support.’ In
Thacker’s case the application was made by Thacker’s master (James Gibbon) who
deposed that Thacker was in his employment and was not subject to the power of
compulsory conscription.18 Assuming that the ground of Thacker’s release corresponded
to the ground of complaint, the court of King’s Bench was, under the rule to show cause
procedure, permitting itself to undertake a full investigation of the legal basis of the
detention —whether Thacker was in fact a person who ‘exercise[d] a lawful calling or
employment’. An enquiry of this sort was something which that could not have done
under orthodox habeas corpus review.19
16
M. Foster to Charles Yorke (undated, 1758) in Life of Sir Michael Foster, 51-2.
R.. v Lediard (1751) Say 6; 96 ER 784.
18
Affidavit of James Gibbons, 25 Jan 1757 (PRO KB 1/ 13).
19
A further ground of justification followed from the fact that habeas corpus was predicated on detention.
However, it was argued, a compulsorily enlisted soldier was usually not in detention. Accordingly, the
King’s Bench simply had no entitlement to grant the writ: ‘when he was at liberty with the regiment to
which he was delivered he could have no habeas corpus.’ The law reporter Sir James Barrow (who as
Master of the Crown Office would, of course, have been very well acquainted with the practice in these
17
5
The parliamentary counter-reaction
However, early in 1758 Mansfield CJ’s apparently innocuous innovation in Crown-side
procedure unexpectedly became the subject of virulent political row. On 21 February
1758 leave was given to bring in a bill (‘for giving more speedy remedy to the subject
upon the writ of habeas corpus’)20 targetted against Mansfield CJ’s modification of
habeas corpus. Three weeks later the bill had been drafted and was presented to the
House of Commons. The move for the legislation was led, from within the government
itself, by the Attorney General, Sir Charles Pratt.
There had been no general public opposition to Mansfield CJ’s reform until
Pratt’s bill was published. Until the Parliamentary controversy began in the spring of
1758 there had been no mention of the issue in the newspapers, and no public
demonstrations. If public opinion is discounted then it is more likely that the agitation
originated within Parliament on the basis of information conveyed by legal sources. The
Parliamentary committee21 which had drafted the habeas corpus bill contained three
lawyers who practiced in the King’s Bench: John Morton, Richard Hussey and Sir
Charles Pratt. The most prominent of this group, Sir Charles Pratt, the Attorney General,
had been marginally involved in one military impressment case. 22 This was before the
rule to show cause procedure had been invented, and he may not have been directly
acquainted with the new procedure. The second of these lawyers, Richard Hussey, had
not acted in any of these early impressment cases. However, the third member of the
group, John Morton, was the Crown-side barrister with the largest practice in
cases) appended a short note to Andrew Kessel’s Case in 1758 (1 Burr 637; 97 ER 486): Kessel, he
explained, could not ‘have brought a habeas corpus. He was not in custody’; instead, ‘Kessel was made a
corporal.’ This, however, was the weaker of the arguments, exaggerating the extent to which applicants
were not in detention. In almost all of the cases where the rule to show cause was issued the applicant was
being detained in the Savoy Prison.
20
Commons’ jn. xxviii, 99, 21 Feb. 1758.
21
The Committee was composed of Sir John Cust, Richard Hussey, Sir Charles Pratt (Attorney General),
Sir John Philips, George Bowes, John Morton and William Northey (Commons’ jn. xxviii, 99, 108).
22
Pratt had appeared in Trinity 1757 on behalf of the Commissioners in the case of Thomas Martin. He had
consented to the grant of bail to the prisoner (PRO KB 21/37).
6
impressment-related habeas corpus cases.23 In Hilary 1757, on the day following the
proceedings in Thacker’s case, when Mansfield CJ first issued his controversial rule,
John Morton appeared on behalf of an impressed soldier, John Dunne. Morton moved, as
he had on many occasions before, for a writ of habeas corpus. Morton’s application was
refused, and was converted into a rule to show cause. Given his closeness to the inception
of the procedure, and his association with Pitt’s faction, it is possible that John Morton
was connected to the process of transmission between the court of King’s Bench and the
House of Commons; his presence on the Committee which drafted the Bill is certainly
difficult to reconcile with the claim of Wilmot J and Mansfield CJ that the procedure had
been unanimously approved by Crown-side barristers involved in impressment cases. 24
The rule to show cause may have been a well-intentioned reform intended to
expand the scope of review on the writ and to avoid the inconvenience of production. But
it was, nonetheless, strictly a denial of habeas corpus. This was the factor which gave this
rather technical change in Crown-side procedure its potential to embarrass Mansfield CJ.
Newcastle described how, in the course of an attempt to discuss the matter calmly with
Pitt, he had to retreat as Pitt overwhelmed him:25 ‘he took me up high…that my Lord
Mansfield had taken upon him to alter the law…Lord Mansfield had ordered a rule of
court instead of granting the habeas corpus which he was obliged by law to do.’
Mansfield CJ, Pitt alleged, had denied the writ of habeas corpus; for doing this,
Mansfield CJ merited impeachment for infringement of the constitution:26 ‘judges might
be impeached for this breach of the law; that it was the case of the Ship Money; … he told
me that those who supported My Lord Mansfield must take my Lord Mansfield’s fate’
23
Morton had appeared in one of the first impressment-related habeas corpus applications during the Seven
Years’ War, that on behalf of Edward Worrell in Easter 1756. In Hilary 1757 Morton had been involved in
impressment-related habeas corpus applications on behalf of John Dunne, James Hawkes and James Lundy.
24
In the paper drafted by Wilmot J and Mansfield CJ it was claimed that ‘no counsel desired to argue the
question’ of whether they were entitled to habeas corpus instead of the rule to show cause. ‘The most
eminent counsel’ who practiced before the court of King’s Bench had ‘publicly averred that the court in
fact never refused a writ of habeas corpus’; ‘State of the case on the Press Act’ in J Eardley Wilmot, Notes
of Opinions and Judgments Delivered in the Different Courts, London, 1802, 87.
25
Duke of Newcastle to Hardwicke LC, 14 Apr. 1758, P. Yorke ed., Life and Correspondence of Philip
Yorke, earl of Hardwicke, Lord High Chancellor of Great Britain, Cambridge, 1913, vol. 3, 44.
26
Ibid.
7
But on another view, Mansfield CJ rather than denying the remedy was positively
improving it. Mansfield CJ’s reforms provided the impressed soldier with a more
effective scope of review. Characterizing the change in procedure as a denial of the
remedy, as Pitt and his allies were doing, was a disingenuous effort to embarrass
Mansfield CJ; it was on this ground that some contemporary observers took the view that
the real object of the agitation was to exploit the opportunity that it presented to ‘raise a
popular storm on the Earl Mansfield,’27 rather than to defend the integrity of the writ.
A second version of the anti-Mansfield CJ argument was that denial of habeas
corpus, by the substitution of the rule to show cause, meant that the prisoner was denied
his right to be produced before the court. The Chancellor of the Exchequer, Henry Legge,
took this line in a private argument with the Lord Chancellor:28 ‘this he knew: that the
people would not bear the doctrine that it should be in the discretion of the judges
whether to grant the writ or not. That in all cases the body ought to be brought up. Your
grace sees that this is the fundamental point on which the advocates for the bill go.’
A further, more technical, objection was to the alleged unavailability of the rule to
show cause during vacation. Habeas corpus might exceptionally be issued during the
vacation. But, it was argued, there was no authority that the rule to show cause could be
issued during the vacation. Surprisingly (given the technical legal nature of the
contention) it was the newspapers which promoted this argument. The London
Chronicle29 described the effect of the rule in denying access during vacation as ‘the
greatest hardship of all’:
if a man is sent to prison out of term no rule of court can be obtained in his
favour, he is perhaps hurried away before any court sits and when he is listed he
has no remedy, because he is then in no prison, so that he is totally deprived of the
benefit of his habeas corpus the great privilege of his birth, which to him is as
27
George Lyttleton to William Lyttleton, 5 May 1758; R. Phillimore ed., Memoirs and Correspondence of
George, Lord Lyttleton, 2 vols., London, 1845, vol.2, 606.
28
Hardwicke LC to Newcastle, 2 May 1758 (BL Add MS 32879, fo. 373).
29
18-21 Mar. 1758.
8
much suspended during vacation time, as if it had been under a legal suspension
by virtue of an act of parliament.
In order to address these concerns, the 1758 bill, drafted by a committee whose
most prominent member was the Attorney General, Sir Charles Pratt, abolished the
procedure by way of rule to show cause by making it mandatory that the court issue a
writ of habeas corpus merely upon ‘oath of actual confinement or restraint.’ The court’s
freedom of manoeuvre to substitute procedure by rule was abolished by a provision
making habeas corpus obtainable as of absolute right: ‘upon oath made by any person so
confined or restrained, or by any other on his or her behalf, of any actual confinement or
restraint…an habeas corpus directed to the person or persons so detaining shall
be…awarded and granted.’
Opposition to the bill was entrusted by the duke of Newcastle to Sir Charles
Yorke, the Solicitor General, and Fletcher Norton, a King’s Bench practitioner who had
appeared in a number of impressment cases. Although it had been originally expected
that the bill would be defeated,30 the two lawyers charged with defeating the measure
were no match for the more experienced Charles Pratt and Sir William Pitt. Robert
Kenyon, the brother of Lloyd (the future Chief Justice of the King’s Bench) attended the
debate on the motion to bring in the bill. He reported to Lloyd that the ‘habeas corpus bill
is ordered to be brought into the House but much opposition was given by Mr Solicitor
and Norton, til Pratt undertook them who answered the former and cut through the latter
very severely.’31 Pitt, in his speech, accused the King’s Bench, in adopting the rule
procedure, of promoting public convenience over the constitutional rights of the subject:
‘no judge ought to consider the reason of state or public convenience. That was the
business of the Council, and he would never see it exercised by the King’s Bench.’32
During the second stage of the bill the opposition’s case was damaged by an
30
As late as April 1758 it was being reported to George Grenville (who had closed the argument in favour
of Pratt’s Bill) that ‘it is generally said that the Bill of Habeas Corpus is to be thrown out of the House of
Commons’, Charles Jenkinson to George Grenville, 4 Apr. 1758, in W.J. Smith ed., The Grenville Papers,
2 vols., London, 1853, vol. 1, 231.
31
R. Kenyon to Lloyd Kenyon, 25 Feb. 1758, The Manuscripts of Lord Kenyon, London, 1894, HMC,
Fourteenth Report, Appendix, Part IV, 495.
32
Report of Parliamentary debates by James West MP, 17 Mar. 1758 (BL Add MS 35878, fo. 33).
9
embarrassing contribution by Randle Wilbraham, who ‘made a speech above an hour
long …in which he enumerated a happy situation and many blessings he enjoyed in a
dutiful son and daughter with other things as pertinent to the question.’ But Pitt
intervened and ‘soon cut down this old apple woman and handled him most severely.’33
In addition, the newspapers which, until that point, had taken no notice of the issue,
committed themselves virtually without exception to the cause of the liberty of the
subject bill.34 In March 1758 a piece supporting the bill appeared in the Gentleman’s
Magazine; similar items appeared in the daily and evening newspapers, 35 causing
Hardwicke LC to complain to the Prime Minister that ‘if your lordship ever dips into the
newspapers, you will see them filled with most dangerous impertinence upon all subjects,
and particularly this of the habeas corpus.’36 Public meetings were held in the city of
London where ‘Pitt, Legge and Pratt’ (who had sponsored the legislation) were,
Hardwicke LC reported, ‘to be the objects of their praise and adulation.’37
By March 1758 Hardwicke LC was warning the Duke of Newcastle to expect
defeat in the Commons. This, he attributed, to a combination of the emotive effect of the
charge of interference with habeas corpus and the legal ignorance of the Commons:38
‘You know I always said that upon a point carrying the appearance of personal liberty,
where the lawyers would be divided, and which much the greater number of the House
would not understand, the popular tide would prevail there.’ In April 1758 the liberty of
the subject bill passed the Commons. 39
33
R. Kenyon to Lloyd Kenyon, Manuscripts of Lord Kenyon, 495.
M. Peters, Pitt and Popularity, The Patriot Minister and London Opinion during the Seven Years’ War,
Oxford, 1980, 111-112.
35
London Chronicle 18, 23-25, 27 Mar., 18, 20-23 May, 3-6 June 1758; London Evening Post, 29 Apr.-2
May 1758.
36
Hardwicke LC to Newcastle, 27 Mar. 1758, York Correspondence, 44.
37
However an attempt to enlist the Corporation of London in the campaign against Mansfield CJ’s
supposed denial of habeas corpus failed: George Lyttleton recalled that ‘an attempt was made by in the City
by some of Mr Pitt’s faction to raise a popular storm on him there, with so little foundation that the agents
of it were forced to let it drop the charge with disgrace and confusion’ in Lyttleton Memoirs vol. 2, 607.
34
38
39
Hardwicke LC to Newcastle, 8 Mar. 1758 (BL Add MS 32878, fo. 154).
Commons’ Journal, xxviii, 216, 24 Apr. 1758.
10
‘Dangerous to liberty and in many respects absurd’; The House of Lords, May and June
1758
The earl of Newcastle and George II were particularly furious at Pratt’s measure, while
Hardwicke LC called it ‘this absurd bill.’40 The effect of the proposal, if enacted, would
be that ‘in all cases the body ought to be brought up.’41 Mandatory production of the
prisoner was ‘the fundamental point on which the advocates for the bill go.’ 42 But the
proposed statutory right of production on demand was the provision in the bill which
most horrified the Prime Minister, the Lord Chancellor and the Chief Justice of the
King’s Bench. In the House of Lords, Mansfield CJ, alluding to the rise in the number of
habeas corpus applications taken by impresed soldiers and sailors, pointed out the
impracticalbility of such mandatory production in conditions of war. If habeas corpus
was not regulated, every soldier or sailor in service, no matter how spurious their
argument, could use habeas corpus to obtain leave from military service, resulting in a
complete breakdown in military organisation:43 ‘Sailors abroad or battalions embarked,
or in the Isle of Wight if they be restrained from going out of the island, must all have
writs of habeas corpus ... and, if a dislike to the service with the suggestion of an attorney
should induce them to apply, 999 of a 1000 must discharged.’
Returning from the Lords on the final day of the debate, 44 Elizabeth Montagu, the
society hostess, described how Hardwicke LC and Mansfield CJ had demolished the bill
by a series of arguments effectively demonstrating that the legislation was ‘dangerous to
liberty and in many respects absurd.’ That description accurately synopsized two of
dominant themes which made up these widely-acclaimed speeches.
The first strategy in the Mansfield CJ/Hardwicke LC attack involved a
demonstration of the elementary drafting defects in Pratt’s bill; that it was ‘full of
40
Hardwicke LC to Newcastle, 17 May 1758, Yorke Correspondence, 47.
Hardwicke LC to Newcastle, 2 May 1758 (BL Add MS 32879, fo. 373).
42
Ibid.
43
Mansfield CJ’s notes on the habeas corpus controversy 1758 (hereafter Mansfield’s notes) (Scone Palace
MSS (Scone), bundle 1352).
44
E.J. Climenson ed., Elizabeth Montague, The Queen of the Bluestockings; Her Correspondence from
1720-1761, 2 vols., London, 1906, vol. 2, 127.
41
11
absurdities beyond imagination’.45 For instance, the bill drafted by Pratt’s Committee
provided that the court might inquire into the truth of the facts asserted in the return but,
astonishingly, restricted this jurisdiction to the vacation. The Bill provided that the judge
before whom the prisoner shall be brought before ‘by virtue of any habeas corpus granted
in the vacation’ must ‘proceed to examine into the facts contained in such return’.
Hardwicke LC made the obvious point that the anomalous effect of restricting the
jurisdiction to conduct a factual inquiry to the vacation was that ‘the subjects would be in
a worse situation in term time when the king’s supreme courts of justice were open than
they would be in vacation...a single judge in vacation would have the power of trying the
facts contained in the return which the King’s supreme court of justice could not do.’46
A second theme was that the Commons’ measure actually operated to the
‘prejudice of the subject.’ Pratt’s draft conditioned the right to habeas corpus to
applications presented on an oath of ‘actual confinement or restraint.’ This would, it was
pointed out, prevent the issue of the writ in cases where there was merely an
apprehension but not positive proof of detention. Mansfield CJ instanced the recent,
Ferrers case47 where Countess Ferrers had been discharged on habeas corpus from the
imprisonment imposed by her abusive and unstable husband at Staunton Harold in
Leicestershire. This, he suggested, could not have been remedied if the applicant, her
brother, Sir William Meredith, who was not certain of her condition when he had
originally sought the writ, had been required to swear ‘actual confinement or restraint.’ A
further instance of the bill actually prejudicing personal liberty was the requirement in
Pratt’s bill that the writ of habeas corpus be ‘awarded and granted in the same manner as
is directed and under the same penalties as are provided by the Liberty of the Subject Act
[1679]’. However the Liberty of the Subject Act 167948 made it a condition of the grant
that the applicant ‘tender of the charges of bringing the said prisoner, to be ascertained by
the judge or court that awarded the same, and indorsed upon the said writ, not exceeding
45
R. Phillimore ed., Memoirs and Corespondence of George Lyttleton, 2 vols., London, 1845, vol. 2,
607,608.
46
Notes of Lord Chancellor Hardwicke’s speech in Hardwicke LC’s papers on the habeas corpus
controversy 1758 (hereafter Hardwicke’s notes) (BL Add MS 35878, fo. 2).
47
R.. v Earl Ferrers (1758) 1 Burr 631; 97 ER 483; E. Foyster, ‘At the limits of liberty: married women
and confinement in eighteenth-century England’, 17 Continuity and Change (2002), 39-62, 43.
48
23 Car. II, c. 2.
12
twelve pence per mile.’49 The existence of these fees enabled Hardwicke LC to make the
appealing point that the legislation disadvanted indigent prisoners: ‘if he is so poor as not
to be able to pay those charges he cannot have the writ at all.’
A third argument was concerned with the chaotic effects of making habeas corpus
available on demand, without proof of illegal detention. Hardwick LC pointed out that
the proposed legislation would enforce the awarding [of habeas corpus] in all cases
indiscriminately upon an oath of actual confinement. ‘All persons in civil actions or
execution or taken up by their bail ... will be entitled to the writ.’ 50 Hardwicke LC made
the point that the statutory facility would also logically be available to prisoners on
remand as an easy means of evading trial:51 ‘According to this new discovery prisoners in
gaol for any capital crime might have applied for a habeas corpus before the assizes and
have obtained it without having any grounds…Thus he might have infallibly avoided his
trial.’
Mansfield CJ, elaborating upon the dangers of production on demand, pointed out
that ‘any man picked up in the street and hired to swear from information that he believes
a convict is not convicted for criminal matter may reprieve his execution and bring him
up from one end of the kingdom to the other.’52 Pratt’s bill required that the detainee be
produced and a return made within three days. Yet a habeas corpus return was, in military
impressment cases, a complex legal document which could not simply be drafted in so
short a time. The very short time allowed for preparation created the risk of impressed
soldiers and sailors opportunistically obtaining discharge through the Army’s or Navy’s
failure to draft a perfect return within the three-day limit. If the bill was enacted it would
be:53
impossible for any general or admiral or captain of a man of war to make a
sufficient return. If it be the case of a sailor he must state how he became so —if
as a volunteer the return must state when he entered with whom, and all the
circumstances precisely. If he was pressed the return must state the condition of
49
S. 2.
Hardwicke’s notes (BL Add MS 35878, fo. 6).
51
Ibid., fo. 38.
52
Mansfield’s notes (Scone bundle 1352).
53
Ibid.
50
13
the man —it must state the war —the order of council to press —the warrant to
the officers by whom he was pressed and all other requisite circumstances. The
reference to the 31 of King Charles,54 which requires the return to be made in a
few days, renders it impossible to make a sufficient return in this or any other case
of difficulty.
The apprehension that the bill might compromise the war effort must have had a powerful
effect on the Lords. Even the Monitor, the journal which campaigned most intensly in
favour of the bill, conceded the dangers involved in habeas corpus being accessible as of
right in cases of treason, felony ‘or the impress.’55
The judges’ conference
On 9 May 1758,56 Hardwicke LC implemented the second part of his strategy (a tactic
which he may later have regretted): he asked the House of Lords to exercise that ‘peculiar
privilege and advantage of this House’, the facility of consulting the judges. This, he
argued, was a bill ‘particularly mixed with and relating to the course of proceedings in
the great courts at Westminster,’ and it would be imprudent to alter the law ‘without
being informed what will be the legal construction of the bill and how it will operate in
practice.’57 Hardwicke LC proposed three questions, all carefully contrived to obtain
authoritative judicial support in strengthening the case against the bill. The framers of the
1758 bill had assumed that the requirement of reasonable cause before granting the writ
was a mere innovation of Mansfield CJ (and proposed to abolish the requirement).
Hardwicke LC’s first question ―whether it was the general practice to require probable
cause verified by affidavit before issuing a writ of habeas corpus?― was designed to
secure corroboration of his argument that the requirement of probable cause in
impressment cases was not a change in the law (thereby proving that the bill was based
on a false premise). The second ―‘whether writs of habeas corpus could issue in
54
The Liberty of the Subject Act 1679.
10 June 1758.
56
Lords’ Journals xxix, 331, 9 May 1758.
57
Hardwicke’s notes (BL Add MS 35878, fo. 40).
55
14
vacation by fiat from a judge?’― was designed to show that Pratt’s proposed reform,
enabling writs to be issued in vacation, was entirely unnecessary. The third ―‘what will
be the practical effects of the legislation if enacted?’― was designed to conscript the
judges into supporting Hardwicke LC’s argument that the Pratt measure would result in
military chaos. Hardwicke LC wanted to know whether ‘all pressed men, whether in land
service, or under recruiting acts, or under sea service in general, will be entitled to writs
of habeas corpus of course by the terms of this bill?’ He wanted to know ‘whether
persons imprisoned in civil actions …will be entitled of course to habeas corpus?’;
whether or not the bill would place prisoners in a ‘worse condition than they are at
common law’?
When Hardwicke LC had proposed his three questions, Richard Grenville, who
led the movement for enactment of the liberty of the subject bill in the Lords, stood up
and proposed a further seven questions. Grenville’s questions had a quite different
objective to those of Hardwicke LC: they consisted of seven interrogatories, skillfully
drafted, so as to expose defects in the law of habeas corpus, and thereby demonstrating
the necessity for legislative reform along the lines of Pratt’s bill. Grenville’s first question
attempted to undermine the customary basis for the jurisdiction to issue habeas corpus in
vacation by inquiring whether that power had existed anciently at common law and
before the Habeas Corpus Act 1679? A further question raised another penetrating point:
whether a judge who had issued a writ in vacation could enforce obedience to the writ by
a process of contempt?58 Grenville’s final question exposed the greatest weakness
affecting the writ: the inability of the court ‘even when [illegality] should appear by the
clearest and most manifest proof,’ and even where the prisoner was ‘restrained of his
liberty by the most unwarrantable means and in direct violation of law and justice,’ to
investigate the truth of the facts stated in the return.
For a fortnight in May 1758 the judges of the courts of common law met (on one
occasion at least in Willes CJ’s house) and corresponded with each other. They were
assisted by the position paper on habeas corpus produced by Wilmot J and Mansfield CJ
58
This was question six of the Lords’ questions.
15
the previous month. This was supplemented by two detailed searches of the records of the
King’s Bench: one on the issue of vacation habeas corpus,59 and the other on
impressment- related habeas corpus precedents from 1705 onwards.60 In the end, it was
Hardwicke LC’s rivals who profited most from the Lord Chancellor’s strategy of
summoning the judges. The first embarrassment occurred a few days before the judges
were due to give their advice, when Hardwicke LC learnt that the judges had deemed
constitutionally inappropriate the question which Hardwicke LC had considered was the
most important — ‘what will be the practical effects of the legislation if enacted?’ Noel,
Clive and Bathurst JJ, Willes CJ and Legge B, in particular, resented the attempt to
exploit their opinions for partisan ends. Hardwicke LC reported to the Prime Minister the
existence of ‘intrigue amongst the judges which has already engaged all the judges of the
Common Pleas and Mr Barron Legge to determine not to answer your Lordship’s last
question relating to the consequences of the bill.’61 Willes CJ, on behalf of the judges,
asked the permission of the House of Lords to be excused from answering Hardwicke
LC’s third question, on the ground that it was constitutionally compromising. This
concession was granted.62
On the other hand, Grenville’s well-informed interrogatories proved the case for
reform on three points: first, a majority of the judges who delivered opinions in the House
of Lords63 doubted whether the practice of issuing habeas corpus in vacation pre-existed
the Habeas Corpus Act 1679. This, in turn, suggested that the practice lacked a solid
customary foundation in the common law, and required a legislative basis. Second, all of
the judges conceded that there was no power to enforce compliance with a habeas corpus
issued in vacation by attachment. This also required legislative remedy. Third, the judges
divided evenly, six-to-six, on the issue of whether the scope of review on the writ
extended to anything other than a review of the contents of the return, and whether there
Hardwicke’s notes (BL Add MS 35878 fo. 58).
AT MS F98.
61
Hardwicke to Newcastle, 21 May 1758, Yorke Correspondence, 49, 50.
62
Lords’ Journals xxix, 337, 25 May 1758.
63
Noel, Bathurst and Clive JJ, Willes CJ, Legge B, and Parker CB. However, the two judges who did not
attend the Lords, Foster J and Mansfield CJ held that the jurisdiction pre-dated the Habeas Corpus Act
1679. If these two undelivered opinions are included judicial opinion on the issue was evenly divided.
59
60
16
was power to controvert untruths contained in the return. This division of opinion added
further to the argument for legislative reform.
The capacity to contradict the return
The question of whether there was a power to contradict assertions of fact contained in
the return to a habeas corpus exposed serious internal disagreement within the judiciary.
The judges split six64 to six65 on this issue. Three judges of the King’s Bench and three
Exchequer judges favoured the view that the return was unchallengeable by habeas
corpus. All four judges of the Common Pleas, Foster J of the King’s Bench, and Legge B
of the Exchequer held that a factual investigation was possible. The principal argument
relied upon by the King’s Bench/Exchequer group was that in the common law system
issues of disputed fact were determined by a jury. It was on this fundamental
constitutional ground that the courts on habeas corpus could not try factual conflicts:66
Determining a controverted fact by affidavits is a method of trial unknown to the
constitution. Questions of law are determined by judges, questions of fact
determined by a jury … the courts of equity in imitation of the courts of the civil
and canon law admit written evidence which is better than affidavits because the
witnesses can be cross-examined; yet whenever a fact is disputable they never
determine it on written evidence but send it to law to be determined by a jury.
Furthermore, the trial of issues of fact on affidavit was an unreliable method of
establishing the truth. In a memorandum prepared by Mansfield CJ, the Chief Justice
wrote that ‘the most probable means of discovering truth is the viva voce evidence laid
before a jury; that by affidavits is very liable to perjury and misrepresentation,’ while
Noel, Bathurst and Clive JJ, Willes CJ and Legge B in their Lords’ responses were of opinion that the
return was, in limited circumstances, challengeable. Foster J, who was in mourning for his wife, was
excused appearance in the Lords. However in his private notes he responded to the query whether the
judges were bound by the facts set forth in the return: ‘God forbid they should’ (AT MS F105, fo. 1)
65
Denison, Wilmot JJ, Adams B, Smyth B, and Parker CB held that the return was final. Mansfield CJ,
who did not deliver an opinion in the Lords, but prepared a paper on the topic, also held that the return was
conclusive.
66
Mansfield’s notes (Scone bundle 1532).
64
17
Wilmot J said that trial by affidavit deprived the party of the advantage of viva voce
examination ‘where the looks, the manner and the deportment of the witness are entirely
material.’67 A power to contradict the return by affidavit required legislation.68
In response, the Court of Foster J/Common Pleas/Legge B grouping appealed to,
what Legge B called, the ‘great superintendancy of the Court of King’s Bench.’ That
supervisory function would be ineffective unless the King’s Bench recognized a power of
review wider than mere scrutiny of the formal contents of the return. Clive J argued that
‘the return, be it ever so full, ought never to be conclusive; the subject may lose his
liberty and have no adequate remedy; all other remedies for a recruit will be insufficient
as will an action for a false return...[the effect of the rule preventing contradiction of the
return was] only throwing out a rope to a man drowning …neither long enough to reach
him or strong enough to hold him.’69 Mansfield CJ’s predecessor, Ryder CJ, had justified
affidavit review on the very same constitutional principle. In the 1756 habeas corpus
taken by the Chelmsford wine merchant, William Hamilton,70 Ryder CJ was reported as
having justified the admission of affidavits on the ground that ‘the man has no other
remedy.’ Clive J made use of this authoritative dictum (which had been passed on to him
by Foster J) during his appearance in the House of Lords.71
Secondly, it was argued that family custody-related authorities from the
seventeenth century onwards, in particular Emerton v Viner,72 where the King’s Bench
examined matters extraneous to the return, demonstrated a distinction between detention
by private parties and detention by public officers.73 Here a writ of habeas corpus had
been directed to Sir Robert Viner, the Lord Mayor of London, for the release of Bridget
Mansfield’s notes (Scone bundle 1532); Wilmot, Notes of Opinions, 108.
Wilmot J and Adams B pointed out that in the case of mandamus a power to controvert assertions
contained in the return had required the enactment of legislation: the Mandamus Act 1710 (9 Anne, c. 25):
Wilmot, Notes of Opinions, 110; Hardwicke’s notes (BL Add MS 35878, fo. 66).
69
Hardwicke’s notes (BL Add MS 35878, fo.71). Legge B suggested that affidavit review on habeas corpus
was consequential on the fact that Parliament had not intended to give the Commissioners an ‘abject
power’ (Ibid., 69).
70
PRO KB 21/37, fo. 492.
71
Hardwicke’s notes (BL Add MS 35878, fo. 71).
72
(1685) 3 Keb 434; 84 ER 807.
73
This analysis was adopted by Willes CJ (BL Add MS 35878, fo. 74).
67
68
18
Hyde (his stepdaughter). Viner had made a return stating that he did not have Hyde in his
custody. Notwithstanding the return, the King’s Bench, evidently disbelieving Viner’s
return, issued process of contempt against him. Noel J contended that this proved that
while ‘the court gives credit to magistrates’, the rule did not hold equally in ‘matters of
private restraint.’74 Against this Wilmot J, on a close analysis on the records in Viner’s
case, argued that the finding against Viner had been based on his own admission and that
no affidavits had been admitted in contradiction of Viner’s return.75 Further, even if, as
some of the reformers argued, there was a distinction between private and public
detention, and it was possible to review disputes of fact in the case of private detention,
military impressment was administrative, and not private, detention. Wilmot J pointed out
that pressed men are in ‘the custody of persons who are public officers to that purpose.’76
Thirdly, the Foster J/Common Pleas/Legge B faction placed reliance on three
impressment cases —Bolton’s case in 1707,77 Mokes’s case in 1709,78 and Reynold’s case
in 174579—where the King’s Bench had not confined itself to a review of the return. The
first of these was Bolton’s case: Nicholas Bolton had been detained under the Recruiting
Act, 1705. Although a return was produced, the court of King’s Bench made an order
referring the case to six justices of the peace to examine Bolton in order to determine
whether he was a person liable to impressment. Clive J said that ‘this suggests they did
not think themselves bound by the facts on the return.’80 Foster J expressed the argument
more elaborately, saying that if the court did not have the power to investigate the
evidential basis of the detention, it could not have delegated that function to the justices,
for the court could not have delegated to third parties a power which it did not itself
possess: ‘if ye court had no power to enquire and finally to determine concerning ye truth
this consent and rule could not give ye six justices such power. Neither the Keeper of the
Hardwicke’s notes (BL Add MS 35878, fo. 57).
Wilmot, Notes of Opinions, 117.
76
Hardwicke’s notes (BL Add MS 35878, fo. 60).
77
23 Jan 1705 (PRO KB 21/26, fo. 394). There is a very extensive account of the proceedings in Bolton’s
case in AT MS F98, fos. 1,2.
78
AT MS F98, fos. 3,4.
79
Trin 18/19 Geo. II (PRO KB 21/35).
80
Hardwicke’s notes (BL Add MS 35878, fo. 57).
74
75
19
Savoy nor the captain or even the colonel could consent.’81 On the other side, Wilmot J
and Adams B queried why, if affidavits were freely admissible, the court had bothered to
use the attenuated process of a referral to arbitration.82
Foster J and Legge B made use of some ancillary orders issued in the case of
Richard Mokes in 1709.83 Following the return an order had been issued for the
attendance of two individuals, George Townsend and Peter Gardner. Foster J interpreted
this as evidence of a wider jurisdiction: ‘if the court had no power to enquire into the
truth of the return, why are any persons ordered to attend at the adjourned day? The court
never orders the attendance of persons not party to the rule but for their better
information as to matters of fact.’84 In Reynold’s case in 1745 the court of King’s Bench
had, after receiving the return, issued an order requiring the Commissioners to show
cause by affidavit why the impressed soldier, Thomas Reynolds, should not be
discharged. This case supported two propositions: first, that the production of an
unimpeachable return did not foreclose review; second, that the court could review
contests of fact by affidavit. Further, if the court could investigate evidential disputes by
affidavit where the complaint was processed by rule to show cause, as had happened in
Reynold’s case, and as Mansfield CJ had directed it could in the procedure of 1757, then
surely it could do so on habeas corpus?
Mansfield CJ attempted to reconcile the scope of review on the rule to show cause
with the conventional doctrine that the courts could not review factual issues on habeas
corpus by arguing that the rule to show cause was more concerned with remedying
maladministration by the Commissioners rather than releasing the impressed soldier: on
‘[the rule to show cause] the affidavits did not relate to the return but to the behaviour of
the [Commissioners] who were ordered to show cause and answer the affidavits at a
different day than when Reynolds was bought up.’85 The argument that the rule to show
81
AT MS F98, fo. 2.
Wilmot, Notes of Opinions; Hardwicke’s notes (BL Add MS 35878, fo. 65).
83
AT MS F98, fo. 2. Mokes was described as ‘a captain of a company in Lord Barrymore’s Regiment of
foot.’
84
AT MS F98, fo. 3; Hardwicke’s notes (BL Add MS 35878, fo. 69).
85
Mansfield’s notes (Scone Bundle 1532).
82
20
cause was distinct from the habeas corpus process and was a sort of public misfeasance
remedy was rehearsed by Parker CB: referring to Reynold’s case, he said that he
‘consider[ed the proceedings] as collateral proceedings, founded on the general power of
the court of King’s Bench to correct the acts or misdemeanours of all inferior
jurisdictions to the oppression of the subject.’86 Denison J (who mentioned that he had
been in court and had conferred with Lee CJ when the rule issued) said that the procedure
was analogous to the informations commonly issued against justices of the peace who
irregularly convicted defendants under the game acts: the court could not go behind the
conviction on certiorari; but it could, in subsequent proceedings, punish judicial abuse by
an information. The rule to show cause performed a similar function: the affidavits were
admitted not to ‘contradict the return but to support the contempt against the
Commissioners.’87 The distinction had, as a number of the judges on the opposing side
recognized, an improvisatory feel about it. If the constitutional prohibition against
reviewing factual disputes by affidavit was so rigid, why was it permitted —as it had so
regularly between 1756-1758— on the rule to show cause procedure? Legge B pointed
out, investigating evidential disputes on the rule ‘is as much a hearing by affidavit ..as by
habeas corpus.’88 (And if the rule to show cause was really created as a misfeasance
process why was it merely used to release the conscriptee, and never in practice
employed to punish the Recruitment Commissioners for abuse of power?).
The jurisdictional basis of vacation habeas corpus
A second issue exposed by the 1758 crisis was the question of whether the court of
King’s Bench had jurisdiction to issue the writ in vacation. Doubts as to whether there
was a jurisdiction to issue habeas corpus in vacation had been prompted by an inference
from a phrase in Coke’s Institutes:89 ‘The… writ is to be granted out of the chancery,
either in the time of the term (as in the King’s Bench) or in vacation.’ The phrasing
suggested that only the court of Chancery and not the court of King’s Bench had power to
86
Wilmot, Notes of Opinions, 124.
Hardwicke’s notes (BL Add MS 35878, fo. 72).
88
Hardwicke’s notes (BL Add MS 35878, fo. 69).
89
E. Coke, Second Part of the Institutes of the laws of England, 2 vols., 5th ed., London, 1671, 53.
87
21
issue habeas corpus in vacation. The view that there was no power may have been further
consolidated by the appearance of the report of Jenkes’s case where Rainsford CJ refused
to grant the writ, apparently alleging ‘no other reason than it was vacation.’90 Sir Mathew
Hale91 had added further to the unease about vacation habeas corpus. Hale had asserted
that ‘habeas corpus is not regularly to issue or be returnable but in term time,’92 on the
basis that the provision in section 9 of the Habeas Corpus Act 1679 creating a jurisdiction
to issue vacation habeas corpus in the case of ‘criminal’ offences was premised on the
assumption that habeas corpus was not otherwise grantable in vacation. The passages in
Hale and Coke had resulted in the King’s Bench simply suspending in the mid-1750s the
practice, which it had operated since the seventeenth century, of issuing writs of habeas
corpus in vacation. Foster J was the only judge who had not agreed with this
interpretation; it was ‘sorely against [his own] judgment.’ However, ‘out of pure
deference [for what he took] to be the opinion of the majority [he had] declined against
granting the writ in vacation.’93 The records of the court of King’s Bench confirm that
between the introduction of impressment in 1756 and the year 1758, writs of habeas
corpus were not being granted to impressed soldiers or sailors in vacation.94 Mansfield CJ
was fortunate that the withdrawal of vacation habeas corpus was not noticed in the
agitation leading to the demand for Pratt’s measure. The cessation of vacation habeas
corpus (and not the rule to show cause, which, on one interpretation, was really an
amelioration of the remedy) constituted the more significant restriction of the writ made
under Mansfield CJ. Yet the withdrawal of vacation habeas corpus went undetected,
while Mansfield CJ was virtually impeached, and his reputation continued to be
damaged,95 for implementing the rule to show cause.
90
(1676) A Complete Collection of State Trials, 8 vols., London, 1735, vol. 7, 471.
History of the Pleas of the Crown, 1st ed., London, 1736.
92
Ibid., vol. 2, 145.
93
The Life of Sir Michael Foster, 65.
94
See fn. 172 below.
95
Anon, An enquiry into the nature and effect of the writ of habeas corpus both at common law and under
the act of parliament. And also into the propriety of explaining and extending that act, London, 1758;
Anon. Facts, Records, Authorities and Arguments concerning the Claims of Liberty and the Obligations of
Military service…, London, 1758; J. Almon, A Letter concerning Libels, Warrants, Seizure of Papers,
London, 1764 (the subject of the attachment proceedings in R.. v Almon (1765) Wilm 243, 97 ER 94);
Anon., Account of some proceedings on the writ of habeas corpus, London, 1781.
91
22
Question two had been formulated by Hardwicke LC: ‘Whether in cases, not
within the said Act, such writs of habeas corpus may, by the law as it now stands, issue in
the vacation by fiat from a judge of the court of King’s Bench, returnable before
himself?’ All twelve judges agreed that when the courts were not sitting a single judge
could issue a writ of habeas corpus; (conveniently no mention was made of the fact that
the court had recently stopped doing so). Mansfield CJ, in his statement of reasons,
justified vacation habeas corpus as merely an extension of the practice of issuing writs in
civil causes in vacation:96
the vacation is always considered part of the preceding term and it has been the
usage from time immemorial to issue all sorts of writs for commencing suits in
the vacation teste the last day of the preceding term and I can see no reason why
these writs of habeas corpus should not issue in vacation as other writs do and the
reason is rather stronger for their issuing in vacation since they have been used as
a remedy to relieve persons from wrongful imprisonment.97
But Grenville had added a supplementary question intended to unsettle the
consensus that there was a definite jurisdiction to issue writs in vacation. Under question
four the judges were asked ‘whether, at the common law, and before the Statute of
Habeas Corpus in the 31 King Car. II any, and which, of the judges could regularly issue
a writ of habeas corpus ad subjiciendum in time of vacation?’ Here Grenville, by
persuading some of the judges to concede that the practice was no more than eighty years
old, succeeded in inducing the disagreement that he must have hoped for.
Four ―Adams B, Smyth B, Denison and Wilmot JJ― of the ten judges who
submitted opinions to the Lords, and the two judges (Foster J98 and Mansfield CJ) who
were excused attendance, agreed that the vacation jurisdiction pre-dated the act of 1679.
Mansfield’s notes (Scone Bundle 1532).
Mansfield CJ also pointed out that ‘corpus ad faciendum and recipiendum, which remove causes from
inferior courts, issue in vacation of course. There seems to be no reason why an habeas corpus ad
subjiciendum should not issue in vacation as well as those’ (Ibid).
98
Foster J’s response to the question of whether any and which of the judges could issue a vacation habeas
corpus prior to the Act of 1679 was ‘judges of BR’ (AT MS 105, fo. 1). Mansfield CJ was of the same
opinion (Scone Bundle 1352).
96
97
23
A search had been undertaken in the records of the Crown Office of the King’s Bench,
and Wilmot J in his Lords’ speech reported that this disclosed that there were ‘30
precedents from 1660 to the time of passing the Habeas Corpus Act.’ 99 Secondly, the
quotations in Hale’s Pleas of the Crown were unreliable since Hale’s knowledge of
habeas corpus was deficient. Hale, in the same work, had claimed that habeas corpus was
restricted to criminal cases; ‘it is plain he was mistaken’ said Smith B. Further, Hale had
merely stated that habeas corpus was not ‘regularly’ to issue in vacation, which as, Foster
J100 and Mansfield CJ pointed out, ‘seems to admit it did so issue and the practice was
certainly to issue them in vacation at the time he wrote it as appears by ye precedents
before that time.’101 Reliance was also placed on two vacation habeas corpus precedents
discovered by John Selden in his 1628 report to the House of Commons102 on the Privy
Council’s power of committal –Browning’s case103 and Catesby’s case.104 ‘There are,’
Mansfield CJ wrote, ‘instances as far back as Queen Elizabeth's time of writs issued in
vacation by a single judge.’ Vacation bail was a ‘custom or prescription which must be
time out of mind.105 Foster J thought that though the jurisdiction had been ‘sparingly
exercised before the Restoration’ it had issued ‘freely’ since 1660; a practice of over one
hundred years’ standing was ‘evidence of a common law right.’106
Six of the ten judges who submitted opinions to the Lords doubted whether
vacation habeas corpus existed prior to its legislative creation in 1679. Bathurst J,
disputing Wilmot J’s interpretation of the Crown Office precedents, claimed that he could
‘show that many of them issued in term time.’107 In the case of those precedents for writs
issuing in vacation, Bathurst J did not accept that any of these precedents were ‘either for
Hardwicke’s notes (BL Add MS 35878, fo. 58).
Foster J’s notes include the observation: ‘Regularly: implies that [the] practice had prevailed in his time’
(AT MS F103, fo. 2).
101
Mansfield’s notes (Scone Bundle 1352).
102
Hampden’s Case (1628) State Trials, vol. 7, 158.
103
Easter 20 Eliz.
104
Hil. 43 Eliz. Mansfield CJ also relied on the writ issued by Gawdy J returnable immediately before
himself in Gardner’s case in 1601 (reported in J.Tremaine Pleas of the Crown, London, 1723, 354).
Directing the Solicitor General, Charles Yorke, to Tremain, Mansfield CJ added that he ‘will see that in 43
Eliz it was settled practice to issue the habeas corpus ...in vacation before a judge in his chambers’
(Mansfield to Yorke (nd) BL Add MS 35635, fo. 105).
105
Mansfield’s notes (Scone Bundle 1352).
106
AT MS F103, fo. 2.
107
Hardwicke’s notes (BL Add MS 35878, fo. 62).
99
100
24
the purpose of discharging, bailing or remanding the prisoner’; the writs of habeas corpus
discovered by the Clerk of the Crown were for bringing up for trial or for assigning error.
In addition, Legge B suggested three practical reasons why bail could not be granted in
vacation: a return ‘could not be filed in vacation and nothing could be done upon it ‘til
filed; no bail could be taken from him; no process for contempt in vacation time for
disobedience.’108 Many of the opinions raised the difficulty which had until recently so
troubled the King’s Bench: the passages in Coke and Hale.109 These, Bathurst J argued,
were not to be dismissed: the section in Coke had been laid down by him ‘after he had
been Solicitor General and Attorney General and had been Chief Justice BR three
years.’110 It was also implicit in the Habeas Corpus Act 1640111 that vacation habeas
corpus did not exist at that time. The 1640 Act gave persons committed by the Star
Chamber a statutory right to submit an application for habeas corpus ‘in open court.’ That
statutory right would not have been so limited if there had been in 1640 a wellestablished right to vacation habeas corpus.112 Finally, the terms of the Habeas Corpus
Act 1679 (under which judges were empowered in criminal cases to issue writs in
vacation) could only have been enacted on the assumption that there was no pre-existing
power. The act ‘shows that Parliament thought they were giving a new power.’ 113 With a
majority suggesting that vacation habeas corpus was a comparative innovation Grenville
was able to argue that the practice lacked a customary basis and that the ‘perplexing and
grievous uncertainties’ and contradictory opinions had ‘cast doubt upon the legality’ of
issuing writs of habeas corpus in vacation.114
The judges’ habeas corpus bill 1758
The judicial indecisiveness produced a result quite the opposite of that which Hardwicke
LC had originally intended. On 17 May, after it became clear that the judges were openly
contradicting each other, Hardwicke LC wrote to the Prime Minister proposing a new
Hardwicke’s notes (BL Add MS 35878, fo. 68).
The point was raised by Bathurst J, Legge B & Willes CJ (BL Add MS 35878, fos. 61, 67, 74)
110
Hardwicke’s notes (BL Add MS 35878, fo. 61).
111
16 Car. I, c. 10.
112
Clive J (BL Add MS 35878, fo. 70).
113
Ibid.
114
Lords’ Journals xxix, 352, 2 June 1758.
108
109
25
strategy: ‘I can therefore see no medium [but] to let the judges be ordered to prepare and
bring in a reasonable bill to remedy the few defects that have been admitted to exist and
to make some more practicable provision for the discharge of men imprisoned for the
land service.’115 But a merely better-drafted, more reasonable, version of Pratt’s bill was
probably not the outcome which Pitt and Hardwicke LC had originally intended. A law
promoting the use of habeas corpus by impressed soldiers and sailors was (as their
subsequent efforts to retard the enactment of this measure confirmed) not something
which a war-time government could have actively desired. The likelihood was that the
judicial conference had actually strengthened the case for reform, and that the
government found itself forced defensively to offer an alternative habeas corpus bill as
the only means of avoiding defeat.
The Lords’ debate ended on 2 June. The motion for the liberty of the subject bill
was defeated: two very impressive speeches by the Lord Chancellor and Mansfield CJ,
together with Hardwicke LC’s proposal that the judges be instructed to prepare an
alternative bill, ensured victory for the government.116 On the following day the earl of
Newcastle wrote to Hardwicke LC congratulating him on his skill in neutralizing the
dispute with the promise of an alternative measure: ‘the chancellor of the exchequer says
the manner you have ended this affair by the reference to the judges, and events of
yesterday, prevents any triumph some people might have had, and takes away from them
the means of blowing up, addressing etc.’117
The revised liberty of the subject bill that Hardwcke LC had promised was
drafted. The judges’ 1758 bill was a reworked version of Pratt’s measure, with additional
115
Hardwicke LC to Newcastle, 17 May 1758, Yorke Correspondence, 47
Lords’ Journal xxix, 352. 353. The judges were instructed to prepare a bill to (i) extend the power of
granting the writ in vacation to non-criminal cases, and (ii) provide for the issuing of attachment for nonobedience in vacation time. (iii) The judges were also asked to ‘take into consideration in any, and what,
cases it may be proper’ to allow contradiction of the return. Foster J listed the following cases as justifying
the contradiction of the return: ‘Married women under an undue restraint by husbands. Husbands praying
relief against persons keeping wives from them. Parents or guardians praying relief against persons having
infants in their custody. Persons confined under pretence of cure for insanity. Persons having or claiming
the custody the custody of lunatics or idiots otherwise than for cure. Negroes in custody of persons having
or claiming property. Apprentices taken or kept from their masters. Persons impressed for the land or sea
service’ (AT MS F108, fo. 2).
117
Newcastle to Hardwicke, 3 June 1758, York Correspondence, 53.
116
26
provisions drafted by Foster J and Smith B. The bill consisted of three principal
sections.118 The first addressed the problem of vacation habeas corpus by making all
judges of the superior courts competent to issue the writ in vacation. The second made
neglect to ‘make a return or pay obedience’ to a vacation writ a contempt of court. The
third section dealt with the problem of the courts’ incompetence to contradict the return:
the courts were empowered to examine into the facts contained in such a return.
However, the government, which was probably not keen to encourage a habeas corpus
culture amongst conscripts, made no active attempt to publicize the measure. In January
1759 government sources were expressing concern that Lord Denbeigh, one of the
supporters of Pratt’s bill, was pressing to see the bill drafted by the judges.119 When they
got their hands on it, Denbeigh and the Lords’ supporters of the 1758 Bill, were not
impressed. The bill required ‘probable and reasonable ground[s]’. It did not, as Pratt’s
measure had, provide for the automatic grant of the writ. Hardwicke LC reported that ‘it
did not come up to their point, viz the awarding of the writ of course but required
probable cause and to be shewn by affidavit.’120 Worryingly, Denbeigh threatened to
revive the crisis of 1758 by having the measure enacted by the House of Lords and from
there sent down to the House of Commons where moves were bound to be taken to insert
amendments along the lines of Pratt’s original measure. In the end, however, no serious
attempt was made to introduce the measure until 1814.
THE SCOPE OF REVIEW ON HABEAS CORPUS IN IMPRESSMENT CASES 17581816
The position, following the debate of 1758, was that the effectiveness of the remedy of
habeas corpus for persons illegally impressed was compromised by a number of
difficulties: the judges’ opinions had been (i) uncertain as to whether there was a sound,
historical basis for issuing the writ in vacation; (ii) unanimous that, even if habeas corpus
118
A manuscript copy of the Bill (which includes interlineations indicating the origins of some of the
provisions in the measure) is contained in Hardwicke’s notes (BL Add MS 35878, fos. 12-15).
119
Hardwicke to Newcastle, 31 Jan 1759 (BL Add MS 32887, fo. 432).
120
Ibid.
27
could issue in vacation, non-compliance could not be enforced by attachment;121 and (iii)
divided as to whether the courts had power to exercise judicial review over anything
other than the formal return.
Nonetheless, the writ continued after the Seven Years’ War to be used reasonably
commonly by impressed soldiers and seamen: in Trinity term 1779 there were as many as
24 habeas corpus applications recorded in the King’s Bench rule book;122 the general
average was nearer to ten per term. The writ would only have been used as frequently as
it was if it were an effective means of securing discharge from detention. Yet the
conventional scope of review was highly confined. Why then was the remedy so
frequently employed?
The judges of the three courts of common law were divided on the issue of the
power to review evidential disputes on habeas corpus. But the key tribunal was the court
of King’s Bench (which was the conventional forum for habeas corpus). Here a majority
of that court, Denison and Wilmot JJ, and Mansfield CJ supported the orthodox line that
it was not possible to review anything other than the recitals in the return. On the other
hand, the King’s Bench had accepted that a more comprehensive scope of review over
the administration of the impressment power might be accomplished through the rule to
show cause. It might, therefore, have been expected that, given the very defective power
of review recognized by the King’s Bench, habeas corpus would have died out as a
remedy for impressed soldiers and sailors. It might also have been expected that the rule
to show cause would supersede habeas corpus. In fact, the reverse occurred: habeas
corpus flourished, and the rule to show cause was employed only irregularly.
The rule to show cause 1758-1814
The procedure by way of rule to show cause would have provided a means of avoiding
the restrictive principles of habeas corpus review. In William Oak’s case in December
121
122
See ‘Attachment and vacation writs’ below.
PRO KB 36/246.
28
1777123 counsel for the Admiralty (Francis Buller) had filed a standard-form return.
Counsel for the prisoner (John Dunning) argued that, notwithstanding the return, his
client was Danish and exempt from impressment. A contemporary account records the
King’s Bench advising Dunning that if he wished to contradict the return he should
proceed by rule to show cause: 124
the court interposed by telling him that they were not at liberty to go into the
merits of the case upon the return made to the said writ of habeas corpus, which
appeared to them to be a proper return; that there was no other way to bring the
merits before the court than by applying for a rule to be served upon the Attorney
General and Solicitor of the Admiralty for them to show cause why the said
William Oak should not be discharged from his majesty’s service.
However, the rule to show cause became relatively rare after 1758. Following the
embarrassment which followed the adoption of the remedy in 1757, the King’s Bench
was reluctant to compulsorily impose the rule to show cause. The rule seems only to have
been granted either where it was expressly requested, or where the parties consented to a
rule to show cause rather than habeas corpus.
The decision to request process by rule appears to have depended on whether the
impressment was military or naval. It was much more rarely sought in cases involving
naval impressment: once in Michaelmas 1776,125 once in Michaelmas 1779126 and once
in Hilary 1811.127 On the other hand, the remedy continued to be sought in cases
involving military impressment, both during the Seven Years’ War and under the
Recruiting Act 1778. 128 One reason for the differential use of the rule to show cause may
relate to the more combative approach taken to habeas corpus by the War Office (as
opposed to the Admiralty). The Admiralty preferred to avoid contesting habeas corpus
123
PRO KB 36/239.
S. Seddon (Admiralty solicitor) to P. Stephens (Admiralty secretary), 1 Dec. 1777 (PRO ADM 1/3680).
125
John Tubbs’s case (PRO KB 36/235).
126
Robert Darling’s case (PRO, KB 36 /247).
127
Shevel Yole’s case (1811) (PRO KB 21/49).
128
Cases of: William Showler, Edward Edwards, William Oram, William Chapel, James Jones, John Little,
Mich. 1779 (PRO, KB 36/247).
124
29
applications unless satisfied that the application was unmerrited. The arrival of a writ
from the King’s Bench would usually prompt the Admiralty into investigating the
complaint, and, if satisfied that the complaint was sound, it would discharge the
impressed sailor, rather than undertaking the expense of production under a potentially
unsuccessful habeas corpus application. Since habeas corpus tended to induce greater
success, conscripted sailors may have preferred habeas corpus to process by rule. The
approach of the War Office, on the other hand, seems to have been more robust. In 1757
Charles Yorke, the Solicitor General, had advised the military that, once a proper return
had been prepared, the doctrine of the uncontrovertability of the return made it very
difficult for a conscripted soldier to obtain his release: 129
if return be made to the writ alleging that the person who has sued it out is a
proper object of the authority given to the Commissioners, I am of opinion that
such return may be supported in law, because it ought not to be judged of upon
affidavits, but upon the face of the return itself.
If this advice was adopted, and corresponded to the approach of the War Office, the
impressed soldier would have no means of contradicting the return. Of course, ‘the party
is afterwards at liberty to bring an action for a false return,’ but that was probably
regarded as too remote a possibility to be of real concern. It may have been from an
apprehension that the War Office would exploit the doctrine of the impenetrability of the
return that soldiers levied under the Recruiting Acts preferred to proceed under the rule to
show cause procedure, rather than relying on habeas corpus. In fact, the practice of the
War Office changed about 1778: in that year impressed soldiers began proceeding by
129
Report of Charles Yorke (Solicitor General), 11 Jan 1757; C.M. Clode, Military forces of the Crown,
Their administration and government, 2 vols., London, 1869, vol. 2, 587,588. In 1779 the Secretary of
War, Sir Charles Jenkinson, asked the Attorney General whether some provision might be introduced in
recruiting legislation preventing the use of habeas corpus by impressed soldiers. Jenkinson described the
inconvenience caused by the necessity of production on habeas corpus: ‘I should also observe to you that
the good effects of the old law were very much defeated towards the end of the last war by applications
made for writs of habeas corpus in consequence of which it was necessary to bring the pressed men up to
London; and the difficulty, as I am told, was principally from the expense and trouble of bringing the men
up (which made every such recruit when being brought from a distant county cost more than he was
worth).’ In his letter to the Attorney General, Jenkinson enclosed the law officers’ advice of 1757, C.
Jenkinson to Attorney & Solicitor General, 6 Jan 1779 (PRO WO 4/965).
30
habeas corpus. Rather than producing the prisoner and making a return (which would
have inevitably resulted in the application being dismissed and the prisoner being
remanded) no further proceedings were recorded in the rule books. Court records and the
War Office’s archives130 suggest that the military had begun adopting the approach of the
Admiralty, and were not contesting habeas corpus challenges to impressments which
appeared to be legally doubtful.131
The scope of review on habeas corpus 1758-1816
Habeas corpus continued to be the principal remedy of impressed sailors (and later came
to be used by soldiers levied under the recruiting acts). The success of the application
depended on whether the application was contested or not. Where such applications were
contested the impressed soldier or sailor could never expect to be successful. A standardform return had been perfected by the Admiralty and the Crown law officers: this return,
would set out the fact that the impressed person was a seaman, was a natural born subject
of Great Britain, was a fit person to serve as a mariner on board His Majesty’s said ships
of war, and ‘was in no wise exempt.’132 Where a return was made it would be read to the
court (or judge in chambers), invariably declared sufficient and the prisoner remanded.133
There was no instance of a return which used the standard-form formula being quashed in
In a case in 1779 involving two impressed soldiers who had applied to the King’s Bench, War Office
officials having read the affidavits, directed the men’s release from the Savoy Prison, Lewis to Jackson, 18
Nov. 1779 (PRO WO 4/967).
131
Of the seven habeas corpus applications taken on behalf of soldiers held under the Recruiting Act 1778,
no further proceedings are recorded (PRO KB 36/247).
132
For a precedent see the return in the case of Thomas Brown, 6 Dec 1805 (PRO KB 16/24/1).
133
In 1795 the Admiralty Solicitor wrote to the Secretary of the Admiralty: ‘having prepared a return for
Captain Dodd to make, that the said three men entered with him as volunteers for the Atlas, the same was
read in the King’s Bench on the first day of the present term when the Court was pleased to order that the
said three men should be remanded to serve his majesty,’ J. Dyson (Admiralty solicitor) to E. Nepean, 18
June 1795 (PRO ADM 1/3683). In 1804 Lawrence J is reported to have said that: ‘as the return distinctly
stated the man to be a seaman and otherwise in no way exempt from the impress he the judge must be
bound by such return to remand to the Enterprise, but added that if the fact had been made appear to him
by affidavit that Clark had been discharged from the Navy at the conclusion of the war and had bona fide
taken to an employment on the shore without any intention of again going he was of opinion that such a
person was not legally an object of the impress service, and that making [such a] return would make [the
custodian] liable to an action,’ (C. Bicknell (Admiralty solicitor) to J. W. Marsden (secretary to the
Admiralty), 26 Oct. 1804 (PRO ADM 1/3690).
130
31
the English134 court of King’s Bench on grounds of insufficiency. The restriction to
review of the return effectively foreclosed access to any meaningful judicial scrutiny. The
rule had two effects.
Firstly, issues of statutory construction —principally whether the vocational
circumstances of the impressed person fell within any of the exemptions from
impressment— were not capable of being agitated. In Millachip’s case in 1777135 a
habeas corpus application was submitted by an officer of the company of Needlemakers,
who had become a freeman of the City of London the previous December. Millachip,
supported by the Corporation, claimed that as a freeman he was privileged from
impressment. The standard-form return merely recited that he was ‘a natural born subject
of Great Britain and then and long before being a waterman and a person whose
occupation and calling was to work in vessels and boats upon the River Thames and then
being a fit person to serve.’136 Mansfield CJ censured such ‘general returns’ and
suggested to a court, which included the Attorney General, that the return should adopt
the form of a case stated: ‘Mr Attorney, the return must show to a certainty, if true, that
the man is legally impressed.’137 It ought to set out the exemption claimed by the
applicant and then state that this was not a ground of exemption; ‘this, he said, would
bring the question fully before the court which was not to be done by the general
return.’138 Here Mansfield CJ was attempting to expand the contents of the return as a
technique for avoiding the limitations caused by the impenetrability of the return:
134
There were a number of instances in Ireland of returns in naval impressment cases being quashed as
deficient by the Irish Court of King’s Bench. On four occasions in 1812 Downes CJ released impressed
sailors on the ground that the return had not stated how the men had come into the custody of the captain
and what right he had to detain them; Report of 8 Sept. 1812 (PRO ADM 1/3703). [In Jonathan Danson’s
Case in 1813 the return was quashed on the ground that it did not set out the terms of the impress warrant
verbatim; in Thomas Weldon’s case the return was held defective on the ground that it did not negative
each of the statutory exemptions from impressment; Report, 8 Feb. 1813 (PRO ADM 1/ 3704) The return
devised for Ireland differed from that in use in England.
135
Easter 1777 (PRO KB 36/237). There is a very full account of the Millachip case in the diary entries of
the London Corporation activist, Granville Sharp transcribed in J.A. Woods, ‘The City of London and
impressment, 1776-1778,’ 8 Proceedings of the Leeds Philosophical and Literary Society, (1956-9), 111.
136
PRO KB 16/18/1.
137
Woods, ‘City of London and impressment’, 119.
138
General Evening Post, 19 June 1777.
32
If the answer to the claim of exemption was not set out in the return was the court
to remand or to discharge the person claiming exemption? Here was the dilemma.
It was true that an aggrieved person could fall back on an action for false
imprisonment. But the existence of this first remedy did not alter the fact that
...the writ of habeas corpus is a speedy remedy for the liberty of the subject.
Mansfield CJ explained that his objective was (as it had been in 1758) to make habeas
corpus a remedy which would accomplish the objective of providing ‘speedy’ relief for
the individual. In a weary reference to the controversy of 1758, he suggested that that had
also been his objective in developing the rule to show cause as an alternative to the
restrictive scope of review on habeas corpus, but that the development of that reform had
been retarded by the controversy which followed its adoption: ‘he had to go to the House
of Lords and no decision was reached.’
No progress was made in Millachip’s case on Mansfield CJ’s proposition that the
return should set out the ‘answer to the claim of exemption.’ Counsel for the Admiralty
was reported to be ‘very unwilling and backward in proceeding any further’ 139 and the
debate was adjourned on two occasions without ever being resolved. However, there is
evidence that Mansfield CJ may have become less convinced of his original suggestion:
in 1790, citing information given him by his former pupil-master Ashurst J, Buller J
claimed that Mansfield CJ had retracted his theory that the return should rehearse the
contested point of law.140
The Mansfield CJ view was, however, later adopted by the court of Common
Pleas. The applicant in Robert Goldswain’s case141 was a bargeman employed by the
Navy Board to bring materials to the King’s timber yard at Deptford. He had been
granted a protection from impressment by the Navy Board. The Admiralty, however,
139
Report of the Committee appointed by the Court 22 Nov. 1776... for the immediate discharge and
liberation of John Tubbs, 22 Nov 1776 - 15 Jan 1777 (London Metropolitan Archives (LMA),
COL/SJ/27/114).
140
In Hopkins’s case, The Times, 16 Nov. 1790, Buller J recounted that in Millachip’s case ‘Aston J had
held that they could not go outside the return and in the close of business Lord Mansfield agreed with him.’
141
(1778) 2 Black. 1207; 96 ER 711.
33
claimed that he was still subject to impressment: being a bargeman was not a ground of
statutory or common law exception to the prerogative power of impressment. The return
merely followed the standard form and stated that the applicant ‘not in any wise exempt.’
De Grey CJ condemned the use of such an imprecisely formulated return, and demanded
that the return be amended so as to state the fact of the Navy Board exemption and of the
Admiralty’s belief that this was not a legal ground of exemption so that the issue of law
could be reviewed.
The second effect of the impenetrability principle was that contests of fact
between the detainee and the Admiralty or military authorities could not be raised. The
view of the majority in the King’s Bench in the 1758 conference appears to have
prevailed. In 1790 Buller J said that ‘the court was precluded from all enquiry into the
merits of the case which could only be tried either by traversing the return or by an action
for a false one.’142 The rule was rehearsed again in 1804 in the case of an application
made on behalf of a sailor called Clark.143 The return stated that he was a seaman; his
counsel tried to argue that he was no longer a mariner when he was impressed. Lawrence
J was reported to have said that: ‘as the return distinctly stated the man to be a seaman,
and otherwise in no way exempt from the impress, he, the judge, must be bound by such
return to remand to the Enterprise.’144 The only remedy was an action for false return; if
the fact had been made appear to him by affidavit that Clark had been discharged
from the Navy at the conclusion of the war and had bona fide taken to an
employment on the shore without any intention of again going he was of opinion
that such a person was not legally an object of the impress service, and that
making [such a] return would make [the custodian] liable to an action.
THE PRACTICE OF THE ADMIRALTY IN HABEAS CORPUS CASES
142
P. Stephens to J. Dyson, 30 Oct. 1790 (PRO ADM 1/3683).
C. Bicknell to J. Marsden, 26 Oct. 1804 (PRO ADM 1/ 3690).
144
The Enterprise was the holding vessel docked ‘off the Tower’ (C. Bicknell to J. Croker, 6 Mar. 1810,
PRO ADM 1/3698) to which sailors were transferred from their naval vessel pending their appearance
before the King’s Bench, and to which they were remanded in the event of failure of their habeas corpus.
143
34
The real explanation for the establishment and success of habeas corpus as the principal
remedy for impressed sailors lay in the practice of the Admiralty rather than in habeas
corpus doctrine. When a writ of habeas corpus was received an agent of the Admiralty
Solicitor was dispatched either to the judge’s chambers145 or to the Crown Office, in
order to determine the grounds upon which the writ had been issued. Usually, the
Admiralty Solicitor, having obtained a copy of the affidavits, and seeing that the affidavit
disclosed prima facie grounds for release, would recommend that the prisoner be
immediately discharged without making any return to the writ. An account of such an
uncontested habeas corpus in the Morning Chronicle in 1779146 described how two men
had arrived in London from Bristol seeking the release of an impressed sailor (John
Caton). Having waited on Edmond Burke MP (‘one of the representatives of the city who
gave them the most essential assistance’) a habeas corpus application was presented by
John Dunning before the Mansfield CJ. The Chief Justice ‘was so clearly convinced of
the propriety of the application that he declared it did not require a moment’s hesitation
and he ordered it accordingly.’ With the fiat for the writ in their hands ‘the gentlemen
who came for the writ accompanied Mr Burke to the Admiralty —a Board was then
sitting— and their lordships were informed of the steps which had been taken in
consequence of the seizure and imprisonment of Mr Caton.’ The writ was immediately
successful: ‘upon [being informed of Mansfield CJ’s order] their Lordships sent order by
the gentlemen to Captain Hamilton to release Mr Caton immediately and to give
certificate that he was released by their Lordships’ order.’
There appear to have been two reasons for such limited official resistance. Firstly,
the fact that the judge or court had found probable cause to justify issuing the writ was
usually regarded as providing a sufficient assurance that the grounding affidavits were
reliable.147 Secondly, although such actions were in practice never taken, the Admiralty
In 1759 the Admiralty Solicitor described how he had despatched agents to Mansfield CJ’s chambers to
discover the grounds upon which a writ of habeas corpus had been issued for the production of two
impressed sailors (Andrew Evans and Mathew Newstram). Having ascertained from the affidavits that the
men were claiming to be Swedish nationals, the Solicitor recommended that they be discharged without
contesting the application; S. Seddon to J. Clevland, 14 Dec. 1759 (PRO ADM 1/3677).
146
Morning Chronicle, 20 July 1779.
147
In 1778 the Admiralty Solicitor described how, in a case involving a sailor called William Taylor, he
had ‘procured a copy of the affidavit upon which the said writ was granted by Mr Justice Ashurst.’ Having
145
35
still feared the threat of an action for false return.148 The result was that in only a very
small minority of cases was a return ever made.149 Consequently, most applicants were
never affected by the effective denial of judicial review which occurred once a return was
submitted to a writ of habeas corpus.
Of course, the Admiralty’s policy of avoiding contesting habeas corpus
applications risked abuse by sailors procuring writs on the basis of false assertions in
their affidavits. Throughout the Seven Years’ War and the War of American
Independence applicants were granted release purely on credit of the assertions contained
in the affidavits. However, the approach of the Commissioners of Admiralty toughened
during the Napoleonic Wars. Under the new procedure, a printed form was sent to the
captain of the vessel on which the sailor was conscripted inviting him to respond to the
grounds stated in the applicants’ affidavits. Where it was decided to contest the
application arrangements would be made for the transfer of the prisoner (usually to the
naval ship the Enterprise) pending production before the court and for the interrogation
of the prisoner as to the truth of the allegations made in the grounding affidavits. A
typical instance is the case of Benjamin Steel: the applicant had claimed that he was an
apprentice; the Admiralty Solicitor doubted the claim and directed that he ‘be sent around
to the Enterprise’.150 There the Admiralty Solicitor ‘caused him to be strictly interrogated
read the affidavits which asserted that William Taylor was ‘an husbandman and that he never was in the
King’s Merchant’s Service’ he recommended that the case be laid before the Admiralty Commissioners
with the recommendation that Taylor be discharged; S. Seddon to P. Stephens, 20 Oct. 1778; (PRO ADM
1/3680). There are many other examples of the Admiralty Solicitor making such recommendations purely
on the credit of the grounding affidavits.
148
In an opinion dated 13 July 1795, the Admiralty counsel, Spencer Perceval, advised against making a
return where the facts were uncertain: ‘I cannot advise a return to be made upon the hope of being able to
prove the truth of it hereafter … if the facts were false a jury in an action upon such false return would give
probably many thousand pounds in damages’ (PRO ADM 7/302)
149
During the period 1756 to 1760, at the height of the Seven Years’ War, it appears that a return was made
in only two habeas corpus cases: R. v McKeown, Trin. 1756 (PRO KB 36/158) & R. v Brackas, Hil. 1757
(PRO KB 36/160). In the period 1777 to 1780 returns were made in five habeas corpus cases: John
Millachip, Trin. 1777 (PRO KB 36/ 238), William Oak, Mich. 1777 (PRO KB 36/239), William Silly, Hil.
1778 (PRO KB, 36/240); Mathias McNamara, Hil 1778 (PRO KB 36/240); John Wilkins, Easter 1780
(PRO KB 36/249). During the Napoleonic Wars the rate of returns being issued by the Admiralty
increased.
150
C. Bicknell to J. Croker, 10 Aug. 1810 (PRO ADM 1/3699).
36
by [his] agent.’151 Another strategy for checking assertions contained in the affidavits was
to conduct local inquiries in the area where the applicant had originally lived. When
William Cutter obtained a writ of habeas corpus grounded on an affidavit that he had
been at sea for less than two years and was consequently exempt, the Admiralty Solicitor
‘instruct[ed] my agents at Shields to endeavour to ascertain by enquiries in that
neighbourhood.’152 The ultimate legal sanction for including untruths in the grounding
affidavit was a prosecution for perjury. There was at least one such prosecution: John
Brack was convicted at Northumblerland assizes in 1810 for lies in an affidavit
grounding an application for an impressment-connected habeas corpus.153
Under Kenyon CJ the court of King’s Bench begun to exercise greater supervision
over its own processes.154 Use begun to be made during the Napoleonic Wars of the
procedure for quashing writs of habeas corpus quia improvide emanavit: where the
Admiralty, after investigation, ascertained that the application was spurious in fact or law
it would apply to the King’s Bench for a rule to have the writ recalled. 155 In 1805 the
Admiralty Solicitor described how an impressed sailor had sought habeas corpus,
claiming exemption on the ground that he was an apprentice in the Greenland fishing
trade.156 Satisfied that this was not a legal ground of exemption he had ‘moved for a rule
why the writ should not be quashed.’ The King’s Bench, he reported, had ‘held on
Saturday that the apprentices had no extraordinary remedy,’ and quashed the writ.
Another means of reducing the strain on the Navy caused by habeas corpus applications
was to employ, in place of issuing the writ of habeas corpus in the first instance, a rule to
151
In 1801 the Admiralty Solicitor reported that he had discovered that the applicant for habeas corpus was
a volunteer, and had not been impressed. The case had been laid before the counsel for the Admiralty who
‘as to the propriety of moving the court to quash the writ of habeas corpus which had been issued, and
counsel having recommended that such a course be taken, the court was moved by him and a rule obtained
calling upon the prosecutor of the writ to show cause why it should not be quashed …[no cause having
been shown] the writ [was] quashed accordingly.’ C. Bicknell to E. Nepean (secretary to the Admiralty), 20
June 1801 (PRO ADM 1/3688).
152
C. Bicknell to Wellesley Pole (secretary to the Admiralty 1807-1809), 1 Aug. 1809 (PRO ADM
1/3697).
153
Brack was fined £50 and sentenced to two years’ imprisonment; C. Bicknell to J. Croker, 16 Nov. 1809
(PRO ADM 1/3697).
154
See ‘Third party applications’ below, discussing Kenyon CJ’s removal of the entitlement of masters to
use habeas corpus for the recovery of their apprentices.
155
C. Bicknell to W. Marsden, 14 Feb. 1805 (PRO ADM 1/ 3691).
156
The Solicitor’s intervention resulted in the decision Ex p. Brocke (1805) 6 East 238; 102 ER 1278.
37
show cause why a writ of habeas corpus should not issue.157 Under this more
precautionary procedure the respondent was given an opportunity of making a case
against the issue of the writ. The advantage to the Admiralty of this procedure was that, if
the respondent successfully showed cause, the Admiralty was spared the expense and
disruption of having to remove the sailor from naval service. More importantly, the
procedure facilitated the development of a jurisprudence on the law of impressment.
Prior to the use of the rule, the Admiralty’s practice of only contesting specious writs had
prevented judicial construction of the impressment code: the Admiralty would either
release or make a return; neither of these responses permitted judicial determination of
the interpretation of the impressment acts. The rule to show cause enabled the court to
debate the merits of the application and generated a small body of case law (in which the
Admiralty enjoyed a high rate of success).158
HABEAS CORPUS PRACTICE IN IMPRESSMENT CASES
Enforcement of habeas corpus process
In 1761, an attorney who had gone on board the Long Reach in order to serve a writ of
habeas corpus which had been issued for the production of an impressed seaman,
encountered two officers.159 The officers ‘knocked the said rule and copy out of this
deponent’s hands and said “you rascal, you are the habeas corpus man who was here
before.”’ Such violence towards attorneys and court officers serving writs of habeas
corpus on behalf of impressed seamen was not uncommon. In 1759 one of Mansfield
CJ’s tipstaffs, Benjamin Stickhale, had sailed aboard the Princess Royal with a writ of
The rule was first used in Tubbs’s Case, Mich. 1776 (PRO KB 36/235). In that case the King’s Bench,
in Michaelmas 1776, converted an application for habeas corpus into a rule to show cause why habeas
corpus not issue (PRO KB 36/235). According to the Report of the Committee appointed by the Court 22
Nov. 1776… for the immediate discharge and liberation of John Tubbs, 22 Nov 1776 - 15 Jan 1777:
‘instead of the writ being granted in the first instance, by the consent of counsel, on behalf of this City, a
rule was made by the Court for the parties to show cause why the same should not issue’ (LMA
COL/SJ/27/114).
158
Ex parte Fox (1793) 5 TR 276, 101 ER 155; Ex parte Gallile (1798) 7 TR 673, 101 ER 1192; Ex parte
157
Softly (1801) 1 East 466, 102 ER 180; R. v Douglas (1804) 5 East 477, 102 ER 1153.
159
Affidavit of Roger Sheppard, 10 Feb. 1761 (PRO KB 1/14/5).
38
habeas corpus which had been issued by Mansfield CJ in vacation. He announced that he
was ‘Lord Mansfield’s tipstaff, and as evidence thereof he produced and showed them his
staff.’ Unimpressed, one of the master’s lieutenant’s ‘kicked the [writ of habeas corpus]
down the stairs’ and announced that ‘had he known his business he would have ordered a
six-pounder to be flung into the boat.’160 In 1796 Admiral Bligh was attached following
an incident when, a writ of habeas corpus having been issued for a sailor abroad the
Brunswick, he ‘told the person who brought [the writ] that he would sink him and the
boat too if he did not go back.’161 There were complaints also that, following the issue of
a writ of habeas corpus, impressed sailors were transferred to other vessels or sent
abroad, so as to frustrate a recommendation for discharge. In 1805 an attorney
complained that naval captains ‘after being served with writs of habeas corpus, [had]
taken the person who is the subject of them on foreign stations or transmitted them to be
drafted on board other ships and sent on foreign service instead of sending them on board
the guardships to await the result of your report.’162 The result was that, even where the
Admiralty recommended the liberation of the sailor, ‘the person is frequently drafted so
as to make it a work of time in ascertaining on board what ship they are.’
The court of King's Bench was regularly forced to issue rules to naval
commanders to show cause against attachment for non-compliance with habeas corpus in
the late eighteenth-century: two such rules issued in 1760;163 at least seven such rules
were issued during the wars of American Independence;164 nine between Easter 1795 and
Easter 1798.165 But there appears to have been only one instance, Falkingham’s case,166
where a captain was actually punished for contempt; in Falkingham’s case the
respondent, who had made the error of attacking Mansfield CJ’s tipstaff, was fined £101
160
Affidavit of Thomas Bane, 14 Nov. 1759 (PRO, KB 1/4/3). The affidavit was made in the course of the
attachment proceedings R.. v Falkingham (1760) 1 Black W 269, 96 ER 149.
161
The Times, 10 June 1796.
162
John Haynes to C. Bicknell, 2 May 1805 (PRO ADM 1/3691).
163
R. v Dennis, Easter 1760 (PRO KB 36/175 KB); R. v Falkingham, Mich. 1761 (PRO KB 36/175 KB).
164
R. v Spencer, Hil. 1778 (PRO KB 36/240); R. v Thompson, Easter 1779 (PRO KB 36/ 245); R. v
Roddam, Trin. 1779 (PRO KB 36/ 246); R. v Whitmore, Mich. 1780 (PRO KB 36/251); R. v Daniels, Mich.
1780 (PRO KB 36/251).
165
R. v Afleck, Easter 1795; R. v Dodd, Easter 1795, R. v Scargill, Trin. 1795; R. v Reynolds, Mich. 1795;
R. v Trader, Mich. 1795; R. v Bolderston, Hil. 1796 ;R v. Oliver Easter 1796; R v. Bligh, Trin. 1796; R v.
Fenier Mich 1796 (PRO KB 21/46).
166
(1760) 1 Black W 269; 96 ER 149.
39
(and only avoided greater punishment by an earlier payment of compensation to his
victim).
The more usual outcome was that the proceedings were compromised: the typical
settlement involved the Admiralty undertaking to discharge the impressed sailor and to
pay the prosecutor’s legal costs in return for the prosecutor abandoning the attachment
proceedings. The prosecutor’s attorney would consent to these terms and the process
would be discontinued. In 1796, when process of attachment had been issued against
Admiral Bligh, the Admiralty Solicitor managed to defuse the crisis by settling the matter
with the attorney for the impressed sailor:167
I have seen the solicitor concerned for the prosecution … and that he has
consented to compromise this unpleasant business on the terms of William
Brown, the impressed man in whose favour the writ of habeas corpus was issued,
being immediately discharged and on payment of his costs, and that on these
terms being complied with, he has agreed to consent to a motion in the court of
King’s Bench for a writ of supersedeas to the attachment.168
An item in the London Chronicle169 in 1796 illustrates the effect of attachment in
prompting discharge. Thomas Erskine, who appeared on behalf of the applicant, told the
King’s Bench that he had been forced to initiate attachment proceedings. That had
prompted the man’s release: ‘pending this the man was discharged without the
knowledge of his attorney.’ Erskine asked for costs. The Admiralty acceded to the
application providing that an undertaking was given that no action would be taken for
false imprisonment.
167
J. Dyson to E. Nepean 10 June 1796 (PRO ADM 1/3684).
‘Upon the undertaking of the solicitor for the admiralty that David Spenser … shall be forthwith
discharged, from His Majesty’s Service, it is ordered that, upon payment of costs by the defendant to the
prosecutor or his attorney…if necessary to be taxed by the coroner and attorney of this court, the rule made
this term that the defendant should show cause why a writ of attachment not issue… be discharged’ (PRO
KB 21/47). A similar rule was made in Easter Term 1795 in the case of Thomas Pitts (PRO KB 21/46).
169
15 Apr. 1796.
168
40
Vacation habeas corpus
In 1757 the King’s Bench, concerned about the jurisdictional basis of the power, had
suspended issuing habeas corpus in vacation.170 The power to issue vacation writs was,
according to this theory, confined to the jurisdiction created by section 9 of the Habeas
Corpus Act, 1679171 which restricted the power of vacation habeas corpus to prisoners
imprisoned ‘for any such criminal or supposed criminal matters’ —a limitation which
would not, of course, include administrative detention, such as military impressment. The
cessation was temporary. The examination of habeas corpus practice which Mansfield CJ
and Wilmot J undertook in the spring of 1758 demonstrated that they had been mistaken,
and this resulted in the King’s Bench reversing its previous apprehension that it had no
general entitlement to issue vacation writs. The first clear indication of writs of habeas
corpus being issued in vacation appears in Hilary 1759.172 After the temporary cessation
of the mid-1750s it became common for attorneys acting on behalf of impressed sailors to
submit applications in the chambers of the judges of the King’s Bench during the long
periods when the courts were not sitting. However, at least one subsequent justice of the
King’s Bench, Aston J, continued to take the view that the power in section 9 of the 1679
Act was exhaustive of the jurisdiction of vacation judges to issue habeas corpus. In
Millachip’s case the application for the writ had originally been made to Aston J during
the long vacation of 1779. Aston J held that he was confined by the terms of the power
given in section 9 of the 1679 Act; but this only applied in the case of persons
‘imprisoned for criminal or supposed criminal matters,’ and did not, therefore, include
persons held under the power of impressment —an administrative, non-criminal, process.
Rather unfairly (given that Foster J had been the strongest supporter in the King’s Bench
of vacation habeas corpus) he asserted that ‘granting the writ under statute’ —the 1679
Act— ‘was always done by Justice Foster.’173
See ‘The jurisdictional basis of vacation habeas corpus’ above.
31 Car. II, c. 2.
172
Lunburgh’s case, issued by Foster J (PRO KB 36/168). There are no vacation writs of habeas corpus
among the files of writs of, and returns to, habeas corpus for the years 1757 and 1758 (PRO KB 16 15/2 &
KB 16 15/3).
173
Woods, ‘City of London and impressments,’ 111, 119.
170
171
41
While Mansfield CJ presided over the court, vacation writs most often issued
from his chambers in Serjeants’ Inn, or from his house in Bloomsbury Square. 174 The
attorney acting for the impressed sailor would tour the judges’ chambers in order to
identify a judge of the King’s Bench who was still in town. Having secured an
appointment with the judge’s clerk for the hearing of the application he might then have
to organise the production of witnesses in chambers to swear to their affidvits. On
occasions, hearings were held in the evening.175 Where the application was acceded to,
the judge would issue a fiat to the court signer of writs to seal and perfect the writ. This
could result in further delays when, it being out of term, the court offices were closed. An
attorney in 1777, who had been issued with a vacation habeas corpus by Mansfield CJ,
recorded having to pay a further fee in order to ‘prevail upon [the signer of writs of the
court of King’s Bench] to open his office, being holiday week.’176
Attachment and vacation writs
In 1758 all of the judges had concurred in the proposition that a single justice did not
have power to issue attachment for non-compliance with a vacation writ, no matter how
outrageous the contempt.177 Non-compliance with writs during the vacation, through the
inability of the vacation judge to issue process of enforcement, seems to have been a
relatively common problem. The detainee was, as Mansfield CJ suggested, obliged to
wait until the start of term. Typically the process would begin with a rule directing the
respondent to return the writ of habeas corpus issued in vacation within four days. Where
there was still no return made, a motion for attachment would follow.178 The frequency
with which rules requiring a return to a vacation habeas corpus appear in the Rule Book
One of the applications in the case of John Tubbs was made at Mansfield CJ’s London home in
Bloomsbury Square (PRO ADM 1/3680, fo.124).
175
One of the applications in Tubbs’s case was made at seven in the evening (LMA COL/SJ/27/114).
176
Bill of costs in John Millachip’s Case (1777) (LMA COL/SJ/27/114).
177
Lords’ jn. xxviii, 337, 338 (25 May 1758); 340,341 (26 May 1758); 344-346 (29 May 1758).
178
Mich. 1777: ‘It is ordered that Daniel Spenser master or commander of the ship or vessel called the
Emanuel Snow do within four days next following return a writ of habeas corpus lately issued out of this
court to him directed to bring before William Earl of Mansfield the body of Mathias Macnamara’ (PRO KB
36/239). The side bar rule was not obeyed, and the following term attachment was initiated. R.. v
Falkingham (1760) 1 Black W 269, 96 ER 149 is the best known example of disobedience to a vacation
writ being punished by atachment proceedings.
174
42
at the beginning of term suggests that naval commanders may have been taking
advantage of the room for manoeuvre afforded by the absence of the sanction of
attachment in vacation. There is even explicit evidence of this in advice given in 1807 by
the Admiralty Solicitor, who, in one case, suggested that the commander was free to
postpone production until the beginning of term. There appeared, he wrote, to ‘be
sufficient grounds for detaining the said John Charles Frith until the first day of next term
…before which time no application to the court of King’s Bench can be made for an
attachment against the officer for not making a return to the writ.’179 The lack of a power
to issue process of contempt in vacation resulted in a rush to have rules for attachment
heard before term expired. In 1795 counsel for the impressed seamen, whose writ was
being ignored by their commander, pleaded that his motion for attachment be inserted in
the Crown-side list ‘so that the poor fellows may have their rule before the term
expires.’180 The deficiency caused by the lack of a power to enforce process in vacation
was not remedied until 1816.181
Access to legal representation
The capacity of sailors to apply to the King’s Bench was facilitated by the emergence of a
corps of specialist impressment attorneys who solicited business around naval ports. In
the 1780s the Admiralty Solicitor sought the advice of the Attorney General as to whether
any steps could be taken against a solicitor named William Le Coq who was distributing
cards ‘inviting foreigners and apprentices who are impressed into the King’s service to
apply to him and he would procure their discharge.’182 Another attorney named John
Jarvis, of Tower Hill, distributed a printed card which advertised his services in making
‘applications to the Admiralty to clear mates, carpenters, apprentices, foreigners, and
landmen.’183 A particular concern of the Admiralty was that these attorneys were
overbearing sailors into using their services. In 1782 the Attorney General furnished an
179
C. Bicknell to W. Marsden, 11 Apr 1807 (PRO ADM 1/3693).
Submission attributed to Vicary Gibbs recorded on face of the affidavit of T. Reynolds, 2 May 1795
(PRO KB 1 28/4).
181
S. 2 of the Habeas Corpus Act 1816 (56 Geo. III, c. 100) made non-obedience to a vacation habeas
corpus a contempt.
182
‘In the Matter of Joseph Lewis’, 14 Dec. 1782 (PRO ADM 7/300).
183
The card is preserved in the Admiralty Solicitor’s files (PRO ADM 1/ 3701).
180
43
opinion as to what action might be taken against an attorney who, it was alleged, was
profiteering by improperly prevailing upon foreign sailors to seek habeas corpus.184
Kenyon agreed that attorneys who applied improper pressure might be professionaly
disciplined, distinguishing, on the one hand, ‘foreigners [who] had not voluntarily
engaged in the public service nor had received bounty money’ who ‘were entitled to be
discharged in case they desired it’ and, on the other hand, applications which ‘did not
really come from the man voluntarily’ but were ‘urged by the attorney so to make it.’ ‘If
the latter is the case’, Kenyon advised, ‘the attorney would be censured.’185
Especially frustrating to the Admiralty was the procedural advice furnished by the
clerks on the Crown-side of the King’s Bench to attorneys acting on behalf of impressed
seamen. It was, in the late eighteenth-century, standard practice186 for clerks in court in
the Crown Office to provide procedural advice to attorneys. Nonetheless, the Admiralty
was particularly upset by the involvement of court officers who appeared to give of their
time in support of litigation which was so disruptive of its operations. In 1812 the
Admiralty Commissioners directed the Admiralty Solicitor to conduct an investigation
into the background of one particular Crown Office officer who ‘so frequently and in
their Lordships’ view improperly interferes in withdrawing men from his Majesty’s
Service’ and who it was alleged ‘takes upon himself to threaten one of the Flag Officers
of His Majesty’s Fleet.’187 The officer in question, it turns out, was Richard Gude, then
an apprentice Clerk in Court, who subsequently obtained a long- term reputation as the
author of the Practice of the Crown Side of the King’s Bench.188
Third party applications
‘In the Matter of Joseph Lewis’, 14 Dec. 1782 (PRO ADM 7/300).
In 1760 advice was sought as to taking criminal contempt in the case of an attorney called Douglas who
had obtained a habeas corpus which had never been requested by the impressed sailor; S. Seddon to J.
Clevland, 26 Jan. 1760 (PRO ADM 1/ 3678).
186
Report of the Commissioners for examining into the duties salaries and emoluments of the officers,
clerks and ministers of the several courts of justice in England, Wales and Berwick upon Tweed, as to the
Court of King’s Bench, 33: ‘The clerks in court [in the Crown Office] are consulted by attorneys and suitors
relative to the practice of the court, and they give advice as to proceedings proposed to be commenced, and
respecting causes in their progress; neither for this service or for that of taking instructions as to
proceedings do they receive any fee or emolument’ ((1818) (292) VII.24).
187
C. Bicknell to J. Croker, 4 June 1812 (PRO ADM 1/3702).
188
London, 1828.
184
185
44
Many —perhaps as many as half of all applications— were made by persons acting on
behalf of the impressed soldier or sailor: for instance, all of the applications made on
behalf of soldiers levied under the Recruting Act 1756 in Easter term 1757 were made by
third parties —spouses or friends— acting on behalf of the prisoner.189 Corporate bodies
sometimes promoted applications: in 1776 and 1777 the Common Council of London
directed its solicitor to prosecute habeas corpus applications on behalf of two freemen of
London who had been impressed into the Navy.190
However, it was masters of servants and, particularly, apprentices, which formed
the largest category of those third parties promoting habeas corpus applications. The
locus standi of this group became subject to stricter regulation in the 1790s. Kenyon CJ
inaugurated a procedural rule premised on the theory that habeas corpus was improper
where the dominant purpose was to restore an apprentice to his master’s service. It was
inconsistent with the nature of the writ, Kenyon CJ ruled, for a master to use habeas
corpus for the restoration of a servant: ‘the prerogative writ is only granted in favour of
personal liberty.’191 Applications for habeas corpus made by masters on behalf of
apprentices begun to be quashed as improvide emanavit in the 1790s.192 On the other
hand, the apprentice-master did have an alternative remedy: the Chief Justice had a
special power, whose legal basis remained mysterious,193 to issue a warrant for the
restoration of an absconding apprentice.
The apprentice-warrant procedure had been in use, concurrent with habeas corpus,
since the 1770s.194 In its earlier form the apprentice-warrant directed that the apprentice
189
John Pilpin (application by John Smith); John Clowlow (application grounded on affidavit of Mary
Clowlow); George Baynes (application made by Mary Williamson); John Hunter (application grounded on
affidavit of John Warne); John Thompson (application grounded on affidavit of Elizabeth Thompson);
Godferry Isaacs (application grounded upon affidavit of Levy Frederick) (PRO KB 21/38).
190
Journal of the Common Council Corporation of London, 22 Nov. 1776 & 23 Apr. 1777 (LMA,
COL/CC/01/01/005, fos. 13, 50).
191
The Times, 27 June 1798.
192
R. v Reynolds (1795) 6 TR 497, 101 ER 667; R. v Edwards (1798) 7 TR 745, 101 ER 1231.
193
The legal basis of the power to issue warrants of arrest is very unclear. In R. v Edwards (1798) 7 TR
745, 101 ER 1231 the jurisdiction to issue warrants for the restoration of apprentices was attributed to ‘an
old statute passed in the reign of Henry 8’.
194
Mansfield CJ is reported as saying in 1779 that ‘instead of an habeas corpus he should go a shorter way
to work and grant his warrant for bringing them before him, being apprentices. That he knew not of any
45
be apprehended and restored to his master.195 Later, the warrant directed that the
apprentice be taken to the Chief Justice in chambers. The appprentice would then be
examined in the presence of counsel on both sides, and, following submissions by
counsel, either ordered to be restored or remanded.196 During the period that Mansfield
CJ presided over the King’s Bench the apprentice-warrant was an exceptional remedy
reserved for only the clearest of cases: in 1778 Mansfield CJ had ruled that the process be
reserved for cases where ‘no doubt can posssibly arise,’ and in all other cases habeas
corpus was the approriate remedy for the discharge of impresed apprentices.197 In the
1790s Kenyon CJ introduced his habeas corpus exclusionary rule in apprentice cases, and
promoted the apprentice warrant to the status of principal remedy where a master sought
recovery of an apprentice. The result was that (by contrast with the position under
Mansfield CJ) the apprentice-warrant became, under the practice of the 1790s, the
exclusive remedy where a master sought the liberation of his apprentice.
The habeas corpus jurisiction of the Courts of Commmon Pleas and Exchequer
In 1771 the court of Common Pleas confirmed that it had jurisidction to issue habeas
corpus in cases of administrative detention such as impressment.198 This had the effect
that the court of Common Pleas became available as an alternative tribunal where the
King’s Bench refused to grant the writ. In 1776, in Tubbs’s case, the Court of Common
Council of the Cty of London directed the city solicitor ‘in case the rule is not made
absolute [in the court of King’s Bench), do apply to the court of Common Pleas for an
such authority ‘til some years ago, reading some old law books: that he went to Lord Hardwicke and
consulted him on it, who agreed that it was in their power to grant their warrant in such a case for an
apprentice; that Lord Chief Justice Holt was of the same opinion, and that there were several precedents for
it’; Morning Chronicle, 1 May 1779. See J. Oldham and M.J. Wishnie ‘The Historical Scope of Habeas
Corpus and INS v. St Cyr,’ 10 Georgetown Immigration Law Journal 485 (2002).
195
For a precedent, see the warrant in the case of James Nicholson, 29 Mar. 1779 (ADM 1/3680).
196
There is an account of the process in correspondence between C. Bicknell and W. Marsden, 10 June
1806 (PRO ADM 1/3692).
197
In 1778 it was reported that the ‘Chief Justice has several times declared that where a doubt can possibly
arise whether a pressed man is entitled to his discharge he never grants his warrant, but only a writ of
habeas corpus, and that when he issues his warrant he expects that the pressed man be immediately
discharged’; J. Dyson to P. Stephens, 30 Dec. 1778 (PRO ADM 1/3680).
198
Wood’s case (1771) 2 Black W 745; 96 ER 436.
46
habeas corpus.’199 The justices of the court of Common Pleas, both in their responses to
the Lords’ questions in 1758 and in their decision in Robert Goldswain’s case,200
favoured a more extensive scope of review than the judges of the King’s Bench had.
Nonetheless the Common Pleas never became a serious rival to the court of King’s Bench
in impressment-related habeas corpus. There are some references to impressed sailors
using the court of Common Pleas201 and (even before that court was given habeas corpus
jurisdiction by the Habeas Corpus Act 1816)202 the court of Exchequer.203 But the King’s
Bench remained the principal tribunal for the processing of impressment related habeas
corpus applications.
Costs
The Admiralty’s general approach of not contesting writs of habeas corpus in
impressment cases had the effect of reducing the legal costs which would, otherwise,
have been incurred in going to the King’s Bench. The effect was to restrict legal expenses
to those incurred in obtaining the initial writ.204 The cost of legal representation was
further reduced by the King’s Bench’s practice of allowing habeas corpus applications on
behalf of several impressed sailors to be consolidated into a single application.205
In 1782 it was reported that an impressed seaman had been charged ten guineas
by an attorney for obtaining his discharge on habeas corpus.206 In 1805 a sum by way of
seventeen pounds, thirteen shillings was charged as legal fees for the equivalent
199
Resolution of 27 Nov. 1776 (LMA COL/SJ/27/114).
(1778) 2 Black. 1207; 96 ER 711. See the text accompanying fn. 141 above.
201
Re Mark Love, 7 Apr. 1778 (PRO ADM 1/3680)
202
S. 1 Habeas Corpus Act, 1816.
203
Re William Ace, 15 June 1801 (PRO, ADM 1/3688).
204
The principal items of expense would have been: the attorney’s charges in attending the examination of
witnesses who were to swear affidavits on behalf of the impressed sailor; the attorney’s charges for
drawing, engrossing, and copying the affidavits grounding the application; paying stamp duty upon those
affidavits; the retainer to counsel; counsel’s fees for consultation and moving the application; and the
attorney’s attendance fees when the application was moved. See the bills of costs in John Tubbs and John
Millachip’s cases (LMA COL/SJ/27/114).
205
See eg habeas corpus directed Trin. 1779 to the Commander of the Princess Amelia for the production
of Luke Martin and Hans Jensen (PRO KB 36/246).
206
PRO ADM 7/300, fo. 291.
200
47
service.207 Legal fees between £10 and £20 would represent several months’ wartime
wages, and must have acted as a disincentive to litigation.208 On the other hand, the
constant appearance of impressed sailors in the records of the King’s Bench, establishes
that there must have been, even amongst those sailors and soldiers socially vulnerable
enough to fall into the hands of the impress, many with sufficient resources or family or
employment connections to have access to the habeas corpus processes of the court.
THE HABEAS CORPUS ACT, 1816 (56 GEO. II, C. 100)
The judges’ habeas corpus bill of 1758 remained unpublished until 1811. The campaign
which resulted in its enactment in 1816 may have been more the result of a
bibliographical accident than of any popular protest about the deficiencies of the remedy.
In 1811 Michael Dodson’s Life of Sir Michael Foster appeared. The book contained
unpublished correspondence between the judges in 1758, and also contained the text of
the bill. In 1814 Serjeant Arthur Onslow introduced a bill virtually identical to the 1758
bill. In his speech in 1814209 introducing the Bill Arthur Onslow made frequent
references to Dodson’s Life210 and it is probable that it was the publication of these
manuscripts which had been the cause of the renewed interest. Onslow’s 1814 bill, an
improved version of the 1758 measure, empowered the courts to punish by contempt
disobedience to writs of habeas corpus issued in vacation, and empowered the applicant
to controvert the return. 211
However, victory at the Battle of Waterloo was still several months away when
the measure passed the House of Commons in April 1815. The government was, as it had
207
C. Bicknell to W. Marsden 6 June 1805 (PRO ADM 1/3691).
R. Davis, The rise of the English shipping industry, Newton Abbot, 1962, 136, 137; N. Rogers,
‘Impressment and the law in eighteenth century Britain’ in Norma Landau ed., Law, crime and English
society, 1660-1830, Cambridge, 2002, 71.
209
The Times, 22 Dec. 1814; Annual Register 1814, 333-4.
210
In his speech in the Commons Onslow referred frequently to the treatment of the 1758 controversy
contained in Dodson’s biography of Michael Foster: ‘Substance of the speech of Mr Serjeant Onslow
delivered in the House of Commons on Tuesday the 2nd day of Nov. 1814,’ 5 The Pamphleteer 184 (1815).
211
1814-15 (19) 1.11; The judges’ 1758 draft had anomalously limited the power to contradict the return to
cases of vacation writs. This was particularly unaccountable since the same drafting oversight in Pratt’s
draft to which Hardwicke LC and Mansfield CJ had taken such objection in Lords’ debates of 1758.
Onslow’s measure extended the power to contradict the return to writs issued in term.
208
48
been in 1758, probably anxious not to actively assist a measure which would be seen as
aggravating the administrative strain upon the Navy. Having been passed by the
Commons, it was effectively killed off in the Lords (by means of a resolution postponing
further consideration).212 In order to defuse the possible counter-reaction in the
Commons, the government consented to the appointment of a Select Committee to
investigate defects in the law of habeas corpus. Following the report of the Select
Committee, a second bill was introduced in March 1816.213
Throughout, the government’s law officers’ stance in Parliament was lukewarm
rather than directly hostile. The Attorney General and Ellenborough CJ warned of the
dangers of entrusting a power as significant as attachment to a single judge: in the Lords
Ellenborough CJ, melodramatically pleaded ‘on his knees to entreat the house not to
entrust such a discretionary power to him or any individual judge.’214 Parliament
accepted the constitutional principle that determinations of contempt should be reserved
to the court in banc, and the 1816 Act postponed the power to make final determinations
of contempt until the full court sat in term time.215 In other details too, the 1816 Act was
not the mere carbon-copy of the 1758 bill that it is sometimes supposed to have been: the
courts of Exchequer and Common Pleas were empowered to issue writs of habeas corpus
(the 1758 draft had not addressed the issue of the power of courts other than King’s
Bench to issue the writ); the Act removed the liability of the prisoner to pay the charges
of production (these fees had been included in the 1758 measure); and courts in Ireland
were given the power to initiate proceedings for contempt of vacation habeas corpus, and
to penetrate the return.216
‘How little the grievance had been felt’
Lords’ Journals l, 218, 9 May 1815.
1816 (156) 1.85; Commons’ Journals lxxi, 36, 115, 14 Feb. & 1 Mar. 1816; The Times, 9 Apr. 1816.
214
The Times, 9 Apr. 1816.
215
The vacation judge was given power to issue a warrant of arrest; the determination of contempt was
entrusted to the full court.
216
The 1758 measure had proposed that the power to issue vacation habeas corpus be entrusted to the ‘Lord
Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal for the time being or any of them.’
These references were deleted on the ground that it was inappropriate to extend the judicial power to issue
writs to administrative officers such as the Lord Keeper or Lords Commissioners.
212
213
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During the Lords’ debates on the 1816 bill Ellenborough CJ commented that ‘this was a
bill sketched by Mr. Justice Foster long ago and its not having been brought forward
sooner showed how little the grievance had been felt.’217 Was Ellenborough CJ’s
argument, that the measure was superfluous, sound? Certainly ways had been found of
either avoiding or reducing the effects of deficiencies in the common law of habeas
corpus. On the other hand, those measures had only partially remedied these
jurisdictional defects. Firstly, the 1816 Act established a power of vacation habeas
corpus. It is true that the power given to the King’s Bench of issuing vacation habeas
corpus by the 1816 Act merely corresponded to what had (Aston J apart) been the
established practice of the justices of the court of King’s Bench. In that respect
Ellenborough CJ’s suggestion that the grievance was ‘little felt’ is accurate. On the other
hand, it was uncertain whether justices of the court of Common Pleas, or barons of the
Exchequer had the power to issue vacation habeas corpus, and the 1816 Act gave them
this power. Secondly, the 1816 Act empowered vacation justices to instigate attachment
proceedings for non-observance of a writ. This was a power which had not previously
existed. Of course, it could be argued that prior to 1816 there had been a power of
attachment for non-observance of vacation habeas corpus. The only difference was that
prior to 1816 the exercise of the power was postponed until the beginning of term. But
the Admiralty archives show that, in the absence in vacation of the sanction of
attachment, some commanders had tended to be less urgent in their response to the writ.
Third, the 1816 Act permitted the court to circumvent the return. It is true that this had
been mitigated by the practice of the Admiralty in not contesting habeas corpus
applications (and not exploiting the effective denial of relief which the doctrine of the
sacredness of the return permitted). But the fact that the doctrine was so ‘little felt’
remained entirely contingent upon the co-operation of the Admiralty. The enactment of
the 1816 Act freed the subject from dependence upon that good faith which the law
officers of the Admiralty had demonstrated in their dealings with those impressed seamen
who had invoked the writ of habeas corpus.
217
The Times, 23 May 1816.
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