of this act they indeed did not refuse to discharge a man imprisoned without a cause; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of justice. The legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles the First, the same in which the Star-chamber was suppressed, it was enacted, that "if any per"son be committed by the king himself in person, "or by his privy council, or by any of the mem"bers thereof, he shall have granted unto him, "without delay upon any pretence whatsoever, a "writ of Habeas Corpus; and that the judge "shall thereupon, within three court-days after "the return is made, examine and determine the legality of such imprisonment." This act seemed to preclude every possibility of future evasion: yet it was evaded still; and, by the connivance of the judges, the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him. All these different artifices gave at length birth to the famous act of Habeas Corpus (passed in the thirty-first year of the reign of Charles the Second), which is considered in England as a second Great Charter, and has extinguished all the resources of oppression.* * The real title of this act is, An Act for better securing The principal articles of this act are,— 1. To fix the different terms allowed for bringing a prisoner: those terms are proportioned to the distance; and none can in any case exceed twenty days. 2. That the officer and keeper neglecting to make due returns, or not delivering to the prisoner, or his agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in the act); shall for the first offence forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office. 3. No person, once delivered by Habeas Corpus, shall be committed for the same offence, on penalty of five hundred pounds. 4. Every person committed for treason or felony, shall, if he require it, in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be produced at that time: and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence. 5. Any of the twelve judges, or the lord-chan the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas. cellor, who shall deny a writ of Habeas Corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party aggrieved five hundred pounds. 6. No inhabitant of England (except persons contracting, or convicts praying to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions,-on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than five hundred pounds, to be recovered with treble costs, shall be disabled to bear any office of trust or profit-shall incur the penalties of a præmunire, and be incapable of the king's pardon. * The statutes of præmunire, thus called from the writ for their execution, which begins with the words præmunire (for præmonere) facias, were originally designed to oppose the usurpations of the popes. The first was passed under the reign of Edward the First, and was followed by several others, which, even before the reformation, established such effectual provisions as to draw upon one of them the epithet of execrabile statutum. The offences against which those statutes were framed were likewise distinguished by the appellation of præmunire; and under that word were included all attempts to increase the power of the pope at the expense of the royal authority. The punishment decreed for such cases, was also called a præmunire: it has since been extended to several other kinds of offence, and amounts to imprisonment at the king's pleasure, or for life, and forfeiture of all goods and rents of lands. [It may be proper to add, that prosecutions upon a præmunire are now entirely disused.-EDIT.] 1 BOOK II. A VIEW OF THE ADVANTAGES OF THE ENGLISH CHAPTER I. Some Advantages peculiar to the English Constitution. 1. The Unity of the Executive Power. We have seen in former chapters the resources allotted to the different parts of the English government for balancing each other, and how their reciprocal actions and re-actions produce the freedom of the constitution, which is no more than an equilibrium between the ruling powers of the state. I now propose to show that the particular nature and functions of these same constituent parts of the government, which give it so different an appearance from that of other free states, are moreover attended with peculiar and very great advantages, which have not hitherto been sufficiently observed. The first peculiarity of the English government, as a free government, is its having a king-its having thrown into one place the whole mass, if I may use the expression, of the executive power, and having invariably and for ever fixed it there. By this very circumstance also has the depositum of it been rendered sacred and inexpugnable-by making one great, very great man in the state, has an effectual check been put to the pretensions of those who otherwise would strive to become such; and disorders have been prevented, which, in all republics, ever brought on the ruin of liberty, and, before it was lost, obstructed the enjoyment of it. If we cast our eyes on all the states that ever were free, we shall see that the people ever turning their jealousy, as it was natural, against the executive power, but never thinking of the means of limiting it, so happily prevalent in England,* never * The rendering that power dependent on the people for its supplies.—See on this subject chap. vi. book i. [A late writer (in the Edinburgh Review) doubts the efficacy of this supposed safeguard of our constitutional rights,—the power of with-holding supplies. A refusal of granting the immense sums requisite for the service of the year, would, he thinks, "operate like the dissolution of civil society." the present critical state of affairs, such conduct might, indeed, have a very mischievous effect; and, if we had an inconsiderate and ambitious prince on the throne, he might so far trust to the forbearances of the commons in this respect, as to encroach on the liberties of the people; but such is the energy of the general system, such is the inherent spirit of the nation, and so commanding is the influence of public opinion on the ruler of a free state, that we have no reason to dread such an invasion of our rights.-EDIT.] |