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THE HABEAS CORPUS ACT.

139

person, or by his privy council, or by any of the members 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 principal articles of this act are :

1. To fix the different terms allowed for bringing up 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,

* The real title of this act is, An Act for better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas.

he shall be discharged of his imprisonment for such imputed offence.

5. Any of the twelve judges, or the Lord Chancellor, 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.t

* 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.

+ De Lolme greatly exaggerates the mildness of the English laws as they existed when he wrote. The punishments inflicted by them were remarkably severe, and continued to be so until the carrying out of the reforms which were commenced by the late Sir Robert Peel. At present the criminal law of England extends-first, to crimes which are punishable on indictment at common law; secondly, those for which a justice of the peace, or justices of the peace, have the power to punish summarily under special statutory enactments. Indictable offences are treasons, felonies, and misdemeanours ; all treasons, except forgery, are punishable by death, and upon conviction, the offender forfeits to the crown his personal estate of every description, which, where an innocent wife and family survive the forfeiture, is certainly a barbarous law. Treasons punishable with death are compassing the death of the King or Queen. Regnant, or his eldest son or heir, -violating the king's

BOOK II.

A VIEW OF THE ADVANTAGES OF THE ENGLISH

GOVERNMENT, AND OF THE RIGHTS AND LIBERTIES
OF THE PEOPLE; AND A CONFIRMATION, BY RE-
FERENCE TO FACTS, OF THE PRINCIPLES STATED
IN THE WORK.

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

companion, that is to say, his wife during coverture ; violating the king's eldest daughter, or the wife of the king's eldest son and heir ; levying war against the king in his own realm, or being an adherent of the king's enemies in the realm, or giving them aid or comfort in the realm or elsewhere, or slaying the Lord Chancellor or any of the Chief Justices, or any justices being in their places doing their offices. Those capital treasons date from 25 Edward III. st. 5, c. 2. By the 1st Anne, st. 2, c. 15, it is made a capital punishment to prevent a person next in succession to the crown from succeeding thereto, and by the 6 and 7 of the same reign it is made a capital treason to affirm by writing or printing, that any person has a right to the crown otherwise than by the act of settlement, or the act of the union of the two kingdoms of England and Scotland; or that the crown without the authority of parliament is unable to limit the descent of the crown. By the 36 Geo. III, C. 7, and 57 Geo. III. c. 6, compassing or intending the death or destruction, or inflicting any bodily harm tending to the death or destruction, as wounding, maiming, imprisoning, or restraining the person of the king, or deposing him from the crown, levying war against him within the realm, or in order to compel him to overawe the parliament, or to move

than an equilibrium between the ruling powers of the state. I now propose to show that the particular nature and func

any foreigner to invade any portion of the British dominions, such intentions or compassing being by some overt act or deed, or by publishing some printings or writings, constitute also capital treason. By 3 and 4 Victoria, c. 52, it is made a capital treason to marry, or to be concerned in procuring the marriage, of any issue of her present Majesty, while such issue is under 18 years of age, in the event of the crown descending before attaining that age, without the consent of the Regent or Parliament; or assisting any person in procuring such marriage is also made a capital treason. By the 13 Elizabeth, c. 2, it is made capital treason to import bulls from Rome, or to publish or put in use such bulls or instruments. But the 7 and 8 Vict. repeals several capital treasons in regard to the importation of bulls from the See of Rome. Forgery of the Great Seal, of her Majesty's Privy Seal, of any signet or royal sign manual, or Great or Privy Seal of Ireland, constitutes treason, punishable with transportation for life, or not less than seven years, or imprisonment for any term not exceeding two years, without hard labour or solitary confinement for one year. Præmunires are not capital felonies, although they subject the offender to the forfeiture of his lands and goods. The statute of Præmunires is the 16 of Richard II. c. 5. When De Lolme wrote, all felonies, with two or three exceptions, were punishable with death ; but since the 7 and 8 George IV. c. 28, no felony is capital unless excluded from benefit of clergy before or on 14th Nov. 1826. All persons convicted of felony, however, forfeit to the crown their personal estate of every description, and on conviction of capital felong the offender forfeits to the crown all the profits of estates in freehold, and of things not lying in tenure, and to the Lord of the Manor the profits of estates of copyhold, and his blood is also corrupted by the offence. Præmunires are offences against the fundamental laws of the realm ; as the omitting by Deans and Chapters to elect a Bishop, molesting possessors of Abbey lands, contrary to the provisions of the 1 and 2 Philip and Mary, obtaining stay of proceedings other than by arrest of judgment or by writ, in actions for the abolitions of monopolies, asserting maliciously or advisedly, by speaking or writing, that both or either Houses of Parliament may nominate the succession to the crown, or that any person may claim the crown other than by the acts of settlement and of union, or that the king and parliament cannot make laws to limit the descent of the crown, or importing bulls from Rome, or otherwise upholding the jurisdiction of the Pope in these realms. There are now only ten capital felonies punishable with death, viz., murder, unnatural offences, destroying ships-of-war in her Majesty's arsenals or dockyards, naval or military stores or other munitions of war, robbery aggravated by striking the inmate, robbery aggravated by wounding the persons robbed, piracy and endangering the life of any person on board of a vessel, setting fire to a dwelling-house any person being therein, destroying vessels with intent

THE BRITISH GOVERNMENT.

143

tions 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 employed any other expedients beside the obvious one of trusting that power to magistrates whom they appointed annually; which was in great measure the same as keeping the management of it to themselves it

to murder or whereby human life is endangered, exhibiting false lights with intent of drawing vessels into danger: to be possessed of forged stamps for marking gold or silver plate, appears still to remain a capital offence. Other crimes are punishable according to their degree, by transportation for life with or without hard labour, transportation for shorter periods, imprisonment and fines; and punishments are now far milder in the British empire than in any country in the world, unless it be in the United States of America.-Éd.

* The rendering that power dependent on the people for its supplies. -See on this subject, chap. vi. book i.

† The power of the House of Commons to withhold the necessary supplies for carrying on the government, maintaining the defences of the country, and paying the interest of the national debt, is undoubtedly a great restraint upon the authority of the crown; but it would require a great exercise of unconstitutional authority on the part of the sovereign or the ministers of the crown to justify the suspension of the supplies. Withholding the supplies would necessarily involve the country in national bankruptcy, in irretrievable discredit, in public

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