hand, and, on the other, in the administration of trusts, the advancing of loans, cashing of orders on deposits, and in effecting payments between London and the continent. The evidence shows, not that the Templars at any time financed the projects of the kings—the loans amount to a comparatively insignificant sum but that their most useful services consisted in the handling of money derived from other sources. The practice of employing the Templars in financial affairs appears fully developed at so early a period, that they must, almost from the beginning, have been characterized by the integrity and administrative capacity which led men to turn to them in matters of trust; and, as the custom persisted up to the hour of their destruction, they must have continued to inspire confidence. Yet the Templars were certainly very unpopular with their contemporaries. That they shared the popular disfavor with the foreign merchants and the Jews is perhaps a significant fact. It has been suggested that, in addition to all the familiar explanations of their unpopularity, the fact should be taken into consideration that their connection with a lucrative financial business involved them in the suspicion which attached to all who were engaged in monetary transactions.' The important civil services performed by the Templars have been eclipsed by the splendor and romance of their military exploits. It seems, however, that by their financial operations they contributed to the progress of civilization in their time, and that posterity should recognize the services which in contemporary opinion brought them only dislike and distrust.

The circumstances under which the Templars met their end are sufficiently tragic, whether Philip the Fair's accusations had any basis in fact or not. Students of the subject to-day are practically agreed that the charges brought against them were totally unfounded. The iniquity of Philip's attack, which has been called the greatest crime of the Middle Ages, becomes the deeper as the order's efficient performance of the peaceful as well as of the military functions entrusted to it is the more clearly revealed.

1 Cunningham, Growth of English Industry, I. 274.

ELEANOR FERRIS.

AM. HIST. REV., VOL. VIII.——.

HABEAS CORPUS IN THE COLONIES

THE writ of habeas corpus has been regarded as one of the important safeguards of personal liberty, and the struggle for its possession has marked the advance of constitutional government. Magna Charta, Darnel's Case, the Petition of Right, the Bill of Rights and the Habeas Corpus Act bear witness to the importance of the struggle. Our rights at the present day therefore depend upon those acquired by our English forefathers as transmitted to the colonies, which are the connecting link in the process. Hence it is essential that we should know what rights the colonists possessed.

The ordinary conception is that the colonies did not have habeas corpus until it was given to them by England itself, and Queen Anne generally receives the credit for thus graciously extending the privileges of the writ. This idea rests primarily upon the statement of Chalmers. In speaking of Virginia he says that Spotswood, the new Governor, "was received by the Virginians with acclamations, because he had brought them liberty. Influenced by her new advisers, who had been, however, honored with colonial hatred, the Queen gave unsolicited to the provincials the invaluable benefit of the habeas corpus act, which had been denied by the late ministers."'1 This statement applied only to Virginia, and yet the impression seems to be general that the benefit was conferred upon the other colonies as well. It is doubtful if this so-called extension of the writ of habeas corpus really gave the Virginians much more than they already possessed. Just what was granted depends upon Spotswood's proclamation, which up to the present has not been printed. It will appear below; but before examining the document, it will be necessary to consider just what the writ of habeas corpus. is, and what its status was in the other colonies.

The writ of habeas corpus is issued by a court of law or equity, and commands that the body of the prisoner be produced before the court, in order that it may inquire into the cause of imprison- ment or detention. Consequently it is meant for the protection of personal liberty and is properly known as the writ of habeas corpusad subjiciendum. Although there are other writs of habeas corpus,~ yet this is the one which holds the high place in history. The thought underlying the writ depends upon early Saxon conceptions 1 George Chalmers, Introduction to the Revolt, I. 395.

of individual right, and is fully expressed in the Magna Charta, which says that no free man shall be "taken or imprisoned or dispossessed, or outlawed, or banished . . . except by the legal judgment of his peers or by the law of the land." This clause against arbitrary imprisonment was a formal expression of what already existed in the common law. Just when writs of this sort began to issue at common law is uncertain, but by the fifteenth century they were fully recognized. In the strife of the seventeenth century between the powers of the King and the rights of the people, habeas corpus is frequently appealed to. These demands finally culminated in the Habeas Corpus Act of 1679, which provided for the effective application of the writ. It should be noticed that the law did not grant anything new; that it did not make habeas corpus, but merely made efficient a writ, which was recognized as already existing. The common law nature of the writ has been recognized by English and American courts,3 and it is a fair question whether our rights depend upon the common law or upon the statute of Charles II. Certainly it is worth inquiring whether the writ of habeas corpus extended to the colonies by common law or by statute law.

This question is answered in the opinions of the law officers of the English Crown, and in the rulings of the court. In 1720 Mr. West gave an opinion on the extension of the common law to the colonies, in which he said:

"The Common Law of England is the Common Law of the Plantations, and all statutes in affirmance of the Common Law passed in England antecedent to the settlement of the colony, are in force in that colony, unless there is some private Act to the contrary; though no statutes made since those settlements are there in force unless the colonists are particularly mentioned. Let an Englishman go where he will, he carries. as much of law and liberty with him, as the nature of things will bear."

In 1729 the Attorney-General Yorke gave an important opinion upon the statute law in the following words :

"I am of opinion that such general statutes as have been made since the settlement of Maryland, and are not by express words located either to the plantations in general or to the Province in particular, are not in force there, unless they have been introduced and declared to be laws by some Acts of Assembly of the Province, or have been received there by long uninterrupted usuage or practice."

These famous opinions clearly state that the common law of England becomes ipso facto the common law of the colonies, and

1 Magna Charta, Section 39. G. C. Lee, Source-book of English History, 175.

? W. S. Church, A Treatise on the Writ of Habeas Corpus, 3-4.

3 McAll, I, 71, 72. Also Md. Reports, XXXVIII. 203.

* George Chalmers, Opinions (Colonial), 206.

5 Ibid., 208.

that all statutes affirming the common law passed antecedent to the foundation of the colonies also extend thither. No statute laws made since the settlement would extend to the plantations unless they were especially mentioned, or unless they had been adopted by special legislation of the colonies, whose freedom in this respect was limited by the fact that most of their laws required the approval of England. Usage, precedent and practice were mightier forces than legislation, in extending English law; and the Attorney-General recognized this truth. There is little doubt that a much larger number of English statutes were applied in the colonies than would have been adopted in form had they been submitted to the provincial assemblies. This is explained by the fact that many of the colonial lawyers received their training in England, where they imbibed both statute law and common law.1

The distinction between the common law and the statute law should be kept clear, for many difficulties will thus be cleared away. Even Chalmers had a tendency to confuse the two, for in speaking of the common law he says that the colonists did not know the benefits of the writ of habeas corpus. In another place, speaking of the Habeas Corpus Act of Massachusetts, he maintains that it was unnecessary, evidently thinking of the common law. The distinction between the two has been carefully upheld by the courts, which have asserted in so many words that our forefathers brought the common law writ of habeas corpus to this Country. The question arises which are the statutes upon the subject and do they apply to America?

The great English statute is that of Charles II., which is known as "An Act for the better securing the liberty of the subject and for the prevention of imprisonments beyond the seas."5 It was passed in 1679 by rather doubtful means, if the story of Burnet is to be believed. In the preamble it is asserted that there had been great delays on the part of sheriffs and jailors in making returns to writs of habeas corpus for men imprisoned for criminal or supposed criminal matters. Consequently it was enacted that when such a writ was served upon the sheriff or jailor, or upon any of their under officers they should within three days bring or cause to be brought the body of the prisoner before the judge issuing the writ, unless the warrant of commitment was for treason or felony. A fine of five hundred pounds was laid upon the judge for failure to grant the

1 See N. J. (Coxe), I. 389, foot-note. Dall, I. 75.

2 G. Chalmers, Political Annals of the Present United Colonies, I. 678.

3 Ibid. New York Historical Society Collections for 1868, 113.

See McAll, I. 70 ff.

5 Statutes of the Realm, V. 935.

writ, while the jailor forfeited a hundred pounds for not making a return. This law was made to apply to any county palatine, to the Cinque Ports, and other privileged places within England, Wales, Berwick on Tweed, and the islands of Jersey and Guernsey. Persons charged with debt or civil action were excluded from the benefits of the act, while the criminal class was limited by the treason and felony clause. Lecky says that before the Revolution of 1688 there were only fifty capital offenses upon the statute book, but the number was increased until in 1770 it was estimated in Parliament that such crimes numbered one hundred and fifty, while Blackstone says that at that time they equalled one hundred and sixty. In 1786 it was said that the number had increased.' Felonious crimes tended to increase in number throughout the eighteenth century, and hence the Habeas Corpus Act was greatly limited. It is important only as marking the beginning of efficient legal protection for individual liberty, but its power grew as the terms "felony" and "treason" were limited in their meaning.

This statute, which is now considered to be one of the fundamentals of English liberty, makes no mention of the colonies. Hence, according to the opinions already cited, it did not extend to the plantations; and further testimony bears out the same conclusion. When the Charter of Liberties of New York came before the committee of trade and plantations, March 3, 1684, it contained the following clause: "That the Inhabitants of New York shall be governed by and according to the Laws of England.” The committee observed that "This Privilege is not granted to any of His Ma's Plantations where the Act of habeas corpus and all such other Bills do not take Place." 2 In 1692 Massachusetts passed a Habeas Corpus Act, which was practically a copy of the English act. Three years later this came before the Privy Council, which disallowed it: "Whereas . . . the writt of Habeas Corpus is required to be granted in like manner as is appointed by the Statute 31 Car. II. in England, which priviledge has not as yet been granted to any of His Majtys Plantations, It was not thought fitt in His Majty absence that the said Act should continue in force and therefore the same is repealed." 3

These quotations only strengthen the opinions first given and prove that the Habeas Corpus Act did not extend to the colonies; but they do not prove that the colonists failed to enjoy the writ, as will be seen from an examination of the conditions in the various colonies.

1W. E. H. Lecky, A History of England in the 18th Century, VI. 246.

2 Documents Relating to the Colonial History of New York, III. 357.

3 Acts and Resolves of the Province of Mass., I. 99.