Title: Habeas Corpus and Military and Naval Impressment, 1756–1816
Abstract: Abstract At the start of the Seven Years 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. Notes 1The remedy had been also used for this purpose in the seventeenth century: see the writ of habeas corpus, dated 25 April 1694, for production of three impressed seamen, John King, James Lobb and Daniel Cock: The National Archives: Public Record Office (PRO) KB 16/1/4. 22 & 3 Anne, c.13. 3 Nicholas Bolton's Case, Hil. 1705, PRO KB 21/26, fo.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 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. They are catalogued in Sir John Baker and Anthony Taussig, eds., A Catalogue of the Legal Manuscripts of Anthony Taussig (Selden Society suppl. series 15), London, 2007. I would like to thank Mr Taussig for his helpfulness in providing me with access to, and copies of, these papers. 4Trin. 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 precedent found for the 1740s, AT MS F98, fo.8. 529 Geo. II, c.4. 6In McKeown's Case in Trinity 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 the 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). 7PRO KB 21/37, fo.492. 8Affidavit of David Rivenall, PRO KB 1/12/4. 9This quotation had originally been contained in volume 23, page 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. 11The 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. 10KB 21/37, fo.582. 12 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. 14M. Foster to Charles Yorke (undated, 1758), in M. Dodson, ed., The Life of Sir Michael Foster, London, 1811, 51–52. 15YB Mich. 9 Hen. VI, fo.44a; Bagg's Case (1615) 11 Co. Rep. 93b; 77 ER 1271. 16J. Eardley Wilmot, Notes of Opinions and Judgments Delivered in the Different Courts, London, 1802, 86. 17 R. v Lediard (1751) Say. 6; 96 ER 784. 18Affidavit of James Gibbons, 25 Jan. 1757, PRO KB 1/13. 19A 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 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 Journal of the House of Commons, vol.28, 99, 21 Feb. 1758. 21The committee was composed of Sir John Cust, Richard Hussey, Sir Charles Pratt A-G, Sir John Philips, George Bowes, John Morton and William Northey, Journal of the House of Commons, vol.28, 99, 108. 22Pratt 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. 23Morton 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. 24In 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 practised 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 Wilmot, Notes of Opinions, 87. 25Duke of Newcastle to Hardwicke LC, 14 April 1758, in P. Yorke, ed., Life and Correspondence of Philip Yorke, Earl of Hardwicke, Lord High Chancellor of Great Britain, Cambridge, 1913, vol.3, 44. 26Ibid. 27George Lyttleton to William Lyttleton, 5 May 1758, in R. Phillimore ed., Memoirs and Correspondence of George, Lord Lyttleton, 2 vols., London, 1845, vol.2, 606. 28Hardwicke LC to Newcastle, 2 May 1758, British Library (BL) Add. MS 32879, fo.373. 2918–21 March 1758. 30As 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 April 1758, in W.J. Smith ed., The Grenville Papers, 2 vols., London, 1853, vol.1, 231. 31R. Kenyon to Lloyd Kenyon, 25 Feb. 1758, The Manuscripts of Lord Kenyon, London, 1894, Historical Manuscripts Commission, Fourteenth Report, app., pt.4, 495. 32Report of parliamentary debates by James West MP, 17 March 1758, Yorke, ed., Life and Correspondence, vol.3, 4, 5. 33R. Kenyon to Lloyd Kenyon, Manuscripts of Lord Kenyon, 495. 34M. 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 March; 18, 20–23 May; 3–6 June 1758; London Evening Post, 29 April–2 May 1758. 36Hardwicke LC to Newcastle, 27 March 1758, Yorke, ed., Life and Correspondence, vol.3, 44. 37However 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 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 drop the charge with disgrace and confusion’, in Phillimore, ed., Memoirs and Correspondence, vol.2, 609. 38Hardwicke LC to Newcastle, 8 March 1758, BL Add. MS 32878, fo.154. 39 Journal of the House of Commons, vol.28, 216, 24 April 1758. 40Hardwicke LC to Newcastle, 17 May 1758, Yorke, ed., Life and Correspondence, vol.3, 47. 41Hardwicke LC to Newcastle, 2 May 1758, BL Add. MS 32879, fo.373. 42Ibid. 43Mansfield CJ's notes on the habeas corpus controversy 1758 (hereafter Mansfield's notes), Scone Palace MSS (Scone), bundle 1352. 44E.J. Climenson, ed., Elizabeth Montague, The Queen of the Bluestockings: her correspondence from 1720–1761, 2 vols., London, 1906, vol.2, 127. 45Phillimore, ed., Memoirs and Correspondence, vol.2, 607, 608. 46Notes 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, at 43. 4831 Car. II, c.2. 49Section 2. 54Liberty of the Subject Act 1679. 50Hardwicke's notes, BL Add MS. 35878, fo.6. 51Ibid., fo.38. 52Mansfield's notes, Scone bundle 1352. 53Ibid. 5510 June 1758. 56 Journals of the House of Lords, vol.29, 331, 9 May 1758. 57Hardwicke's notes, BL Add MS 35878, fo.40. 58This was question six of the Lords' questions. 59Hardwicke's notes, BL Add. MS 35878, fo.58. 60AT MS F98. 61Hardwicke to Newcastle, 21 May 1758, Yorke, ed., Life and Correspondence, vol.3, 49, 50. 62 Journals of the House of Lords, vol.29, 337, 25 May 1758. 63Noel, 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. 64Noel, 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 [be]’, AT MS F105, fo.1. 65Denison, 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. 66Mansfield's notes, Scone bundle 1532. 67Ibid.; Wilmot, Notes of Opinions, 108. 68Wilmot 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. 69Hardwicke'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. 70PRO KB 21/37, fo.492. 71Hardwicke's notes, BL Add. MS 35878, fo.71. 72(1685) 3 Keb. 434; 84 ER 807. 73This analysis was adopted by Willes CJ, BL Add. MS 35878, fo.74. 74Hardwicke's notes, BL Add. MS 35878, fo.57. 75Wilmot, Notes of Opinions, 117. 76Hardwicke's notes, BL Add. MS 35878, fo.60. 7723 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. 78AT MS F98, fos.3, 4. 79Trin. 18/19 Geo. II, PRO KB 21/35. 80Hardwicke's notes, BL Add. MS 35878, fo.57. 81AT MS F98, fo.2. 82Wilmot, Notes of Opinions; Hardwicke's notes, BL Add. MS 35878, fo.65. 83AT MS F98, fo.2. Mokes was described as ‘a captain of a company in Lord Barrymore's Regiment of foot’. 84AT MS F98, fo.3; Hardwicke's notes, BL Add. MS 35878, fo.69. 85Mansfield's notes, Scone Bundle 1532. 86Wilmot, Notes of Opinions, 124. 87Hardwicke's notes, BL Add. MS 35878, fo.72. 88Ibid., fo.69. 89E. Coke, Second Part of the Institutes of the Laws of England, 2 vols., 5th ed., London, 1671, 53. 90(1676) A Complete Collection of State Trials, 8 vols., London, 1735, vol.7, 471. 91 History of the Pleas of the Crown, London, 1736 (published posthumously). 92Ibid., vol.2, 145. 93Dodson, Life, 65. 94See n.172, below. 95Anon., 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. 97Mansfield 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. 96Mansfield's notes, Scone Bundle 1532. 98Foster 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 [scil. the King's Bench]’, AT MS 105, fo.1. Mansfield CJ was of the same opinion, Scone Bundle 1352. 99Hardwicke's notes, BL Add. MS 35878, fo.58. 100Foster J's notes include the observation: ‘Regularly: implies that [the] practice had prevailed in his time’, AT MS F103, fo.2. 101Mansfield's notes, Scone Bundle 1352. 102 Hampden's Case (1628) State Trials, vol.7, 158. 103Easter 20 Eliz. 104Hil. 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 (n.d.) BL Add. MS 35635, fo.105. 105Mansfield's notes, Scone Bundle 1352. 106AT MS F103, fo.2. 107Hardwicke's notes, BL Add. MS 35878, fo.62. 108Ibid., fo.68. 109The point was raised by Bathurst J, Legge B and Willes CJ, BL Add. MS 35878, fos.61, 67, 74. 110Hardwicke's notes, BL Add. MS 35878, fo.61. 11116 Car. I, c.10. 112Clive J, BL Add. MS 35878, fo.70. 113Ibid. 114 Journal of the House of Lords, vol.29, 352, 2 June 1758. 115Hardwicke LC to Newcastle, 17 May 1758, Yorke, ed., Life and Correspondence, 47 116 Journal of the House of Lords, vol.29, 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 non-obedience in vacation time. 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 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. 117Newcastle to Hardwicke, 3 June 1758, Yorke, ed., Life and Correspondence, vol.3, 53. 118A 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. 119Hardwicke to Newcastle, 31 Jan. 1759, BL Add. MS 32887, fo.432. 120Ibid. 121See text accompanying n.177, below. 122PRO KB 36/246. 123PRO KB 36/239. 124S. 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. 128Cases of: William Showler, Edward Edwards, William Oram, William Chapel, James Jones, John Little, Mich. 1779, PRO KB 36/247. 129Report 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- and solicitor-general, 6 Jan. 1779, PRO WO 4/965. 130In 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. 131Of 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. 132For a precedent see the return in the case of Thomas Brown, 6 Dec. 1805, PRO KB 16/24/1. 133In 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. 134There 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. 135Easter 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 (1956–59), 111. 136PRO KB 16/18/1. 137Woods, ‘City of London and Impressment’, 119. 138 General Evening Post, 19 June 1777. 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. 140In 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. 142P. Stephens to J. Dyson, 30 Oct. 1790, PRO ADM 1/3683. 143C. Bicknell to J. Marsden, 26 Oct. 1804, PRO ADM 1/3690. 144The Enterprise was the holding vessel docked ‘off the Tower’ (C. Bicknell to J. Croker, 6 March 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. 145In 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. 147In 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 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. 148In 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. 149During 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; and 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. 150C. Bicknell to J. Croker, 10 Aug. 1810, PRO ADM 1/3699. 151In 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. 152C. Bicknell to Wellesley Pole (secretary to the Admiralty 1807–09), 1 Aug. 1809, PRO ADM 1/3697. 153Brack was fined £50 and sentenced to two years' imprisonment, C. Bicknell to J. Croker, 16 Nov. 1809, PRO ADM 1/3697. 154See text accompanying n.191, below, discussing Kenyon CJ's removal of the entitlement of masters to use habeas corpus for the recovery of their apprentices. 155C. Bicknell to W. Marsden, 14 Feb. 1805, PRO ADM 1/3691. 156The solicitor's intervention resulted in the decision Ex p. Brocke (1805) 6 East 238; 102 ER 1278. 157The rule was first used in Tubbs's Case, Mich. 1776, PRO KB 36/235. In that case the King's Bench 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 Softly (1801) 1 East 466, 102 ER 180; R. v Douglas (1804) 5 East 477, 102 ER 1153. 159Affidavit of Roger Sheppard, 10 Feb. 1761, PRO KB 1/14/5. 160Affidavit 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. 162John 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. 168‘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. 167J. Dyson to E. Nepean 10 June 1796, PRO ADM 1/3684. 16915 April 1796. 170See text accompanying n.89, above. 17131 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 and KB 16/15/3. 173Woods, ‘City of London and Impressments’, 111, 119. 174One 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. 175One of the applications in Tubbs's Case was made at seven o'clock in the evening, LMA COL/SJ/27/114. 176Bill of costs in John Millachip's Case (1777), LMA COL/SJ/27/114. 177 Journal of the House of Lords, vol.28, 337, 338 (25 May 1758); 340, 341 (26 May 1758); 344–346 (29 May 1758). 178Mich. 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 attachment proceedings. 179C. Bicknell to W. Marsden, 11 April 1807, PRO ADM 1/3693. 180Submission attributed to Vicary Gibbs recorded on face of the affidavit of T. Reynolds, 2 May 1795, PRO KB 1 28/4. 181 Section 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. 183The card is preserved in the Admiralty solicitor's files, PRO ADM 1/3701. 184‘In the Matter of Joseph Lewis’, 14 Dec. 1782, PRO ADM 7/300. 185In 1760 advice was sought as to taking proceedings for 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. 187C. Bicknell to J. Croker, 4 June 1812, PRO ADM 1/3702. 188London, 1828. 189John Pilpin (application by John Smith); John Clowlow (application grounded on affidavit of Mary Clowlow); George Baynes (application made by Mary Williamson); John Hunter (