LIBERTY OF THE PERSON.

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office, viz. the countenancing, and supporting with its strength, the execution of the laws.

The subsequent endeavours of the legislature have carried to a still greater extent the above privileges of the people. They have, moreover, succeeded in restraining the Crown from any attempt to seize and confine, even for the shortest time, the person of the subject, unless it be in the cases ascertained by the law, of which the judges of it are to decide.

Nor has this extensive unexampled freedom at the expense of the executive power been made, as we might be inclinable to think, the exclusive appropriated privilege of the great and powerful. It is to be enjoyed alike by all ranks of subjects. Nay, it was the injury done to a common citizen that gave existence to the act which has completed the security of this interesting branch of public liberty. The oppression of an obscure individual, says Judge Blackstone, gave rise to the famous Habeas Corpus Act. Junius has quoted this observation of the judge; and the same is well worth repeating a third time, for the just idea it conveys of that readiness of all orders of men to unite in defence of common liberty, which is a characteristic circumstance in the English government.*

And this general union in favour of public liberty has not been confined to the framing of laws for its security: it has operated with no less vigour in bringing to punishment such as have ventured to infringe them; and the Sovereign has constantly found it necessary to give up the violators of those laws, even when his own servants, to the justice of their country.

Thus we find, so early as the reign of Edward the First, judges were convicted of having committed exactions, in the exercise of their offices, to have been condemned by a sentence of Parliament.† From the immense fines which

* The individual here alluded to was one Francis Jenks, who, having made a motion at Guildhall, in the year 1676, to petition the King for a new Parliament, was examined before the Privy Council, and afterwards committed to the Gate-house, where he was kept about two months, through the delays made by the several judges to whom he applied, in granting him a Habeas Corpus.-See the State Trials, vol. vii. anno 1676.

+ Sir Ralph de Hengham, Chief Justice of the King's Bench, was

were laid upon them, and which it seems they were in a condition to pay, we may indeed conclude that, in those early ages of the constitution, the remedy was applied rather late to the disorder; but yet it was at last applied.

Under Richard the Second, examples of the same kind were renewed. Michael de la Pole, Earl of Suffolk (who had been Lord Chancellor of the Kingdom), the Duke of Ireland, and the Archbishop of York, having abused their power by carrying on designs that were subversive of public liberty, were declared guilty of high treason; and a number of judges, who, in their judicial capacity, had acted as their instruments, were involved in the same condemnation.*

In the reign of Henry the Eighth, Sir Richard Empson, and Edmund Dudley, who had been the promoters of the exactions committed under the preceding reign, fell victims to the zeal of the Commons for vindicating the cause of the people. Under King James the First, the Lord Chancellor Bacon experienced that neither his high dignity, nor great personal qualifications, could screen him from having the severest censure passed upon him, for the corrupt practices of which he had suffered himself to become guilty. And in the reign of Charles the First, the judges having attempted to imitate the example of the judges under Richard the fined 7000 marks; Sir Thomas Wayland, Chief Justice of the Common Pleas, had his whole estate forfeited; and Sir Adam de Stratton, Chief Baron of the Exchequer, was fined 3400 marks.

*The most conspicuous among these judges were Sir Robert Belknap and Sir Robert Tresilian, Chief Justice of the King's Bench. The latter had drawn up a string of questions calculated to confer a despotic authority on the Crown, or rather on the ministers above named, who had found means to render themselves entire masters of the person of the king. These questions Sir Robert Tresilian proposed to the judges, who had been summoned for that purpose, and they gave their opinions in favour of them. One of these opinions of the judges, among others, tended to annihilate, at one stroke, all the rights of the Commons, by taking from them that important privilege mentioned before, of starting and freely discussing whatever subjects of debate they think proper: the Commons were to be restrained, under pain of being punished as traitors, from proceeding upon any articles besides those limited to them by the King. All those who had had a share in the above declarations of the judges were attainted of high treason. Tresilian and Brembre, who had been mayor of London, were hanged; the others were only banished, at the intercession of the bishops.-See the Parliamentary History of England, vol. i.

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Second, by delivering opinions subversive of the rights of the people, found the same spirit of watchfulness in the Commons as had proved the ruin of the former. Lord Finch, Keeper of the Great Seal, was obliged to fly beyond sea. The Judges Davenport and Crawley were imprisoned: and Judge Berkeley was seized while sitting upon the bench, as we are informed by Rushworth.

In the reign of Charles the Second, we find fresh instances of the vigilance of the Commons. Sir William Scroggs, Lord Chief Justice of the King's Bench, Sir Francis North, Chief Justice of the Common Pleas, Sir Thomas Jones, one of the Judges of the King's Bench, and Sir Richard West, one of the Barons of the Exchequer, were impeached by the Commons, for partialities shown by them in the administration of justice; and the Chief Justice Scroggs, against whom some positive charges were well proved, was removed from his employments.

The several examples offered here to the reader have been taken from different periods of the English history, in order to show that neither the influence nor the dignity of the infractors of the laws, even when they have been the nearest servants of the Crown, have ever been able to check the zeal of the Commons in asserting the rights of the people. Other examples might perhaps be related to the same purpose; though the whole number of those to be met with, will, upon inquiry, be found the smaller, in proportion as the danger of infringing the laws has always been indubitable.

So much regularity has even (from all the circumstances above mentioned) been introduced into the operations of the executive power in England,-such an exact justice have the people been accustomed, as a consequence, to expect from that quarter, that even the sovereign, for his having once suffered himself personally to violate the safety of the subject, did not escape severe censure. The attack made, by order of Charles the Second, on the person of Sir John Coventry, filled the nation with astonishment; and this violent gratification of private passion, on the part of the sovereign (a piece of self-indulgence with regard to inferiors, to which whole classes of individuals in certain countries almost think that they have a right), excited a general ferment.

R

"This event," says Bishop Burnet, "put the House of Commons in a furious uproar. It gave great advantages to all those who opposed the court; and the names of the court and country party, which till now had seemed to be forgotten, were revived."*

These are the limitations that have been set, in the English government, on the operations of the executive power limitations to which we find nothing comparable in any other free states, ancient or modern; and which are owing, as we have seen, to that very circumstance which seemed at first sight to prevent the possibility of them,-I mean the greatness and unity of that power; the effect of which has been, in the event, to unite, upon the same object, the views and efforts of all orders of the people.

From this circumstance, that is, the unity and peculiar stability of the executive power in England, another most advantageous consequence has followed, that has been before noticed, and which it is not improper to mention again here, as this chapter is intended to confirm the principles laid down in the former ones:- -I mean the unremitted continuance of the same general union among all ranks of men, and the spirit of mutual justice which thereby continues to be diffused through all orders of subjects.

Though surrounded by the many boundaries that have just now been described, the crown, we must observe, has preserved its prerogative undivided; it still possesses its whole effective strength, and is only tied by its own engagements, and the consideration of what it owes to its dearest interests.

The great, or wealthy men in the nation, who, assisted by the body of the people, have succeeded in reducing the exercise of its authority within such well-defined limits, can have no expectation that it will continue to confine itself to them any longer than they themselves continue, by the justice of their own conduct, to deserve that support of the people, which alone can make them appear of consequence in the eye of the sovereign,-no probable hopes that the

* See Burnet's History, vol. i. anno 1669.-An Act of Parliament was made on this occasion, for giving a farther extent to the provisions before made for the personal security of the subject; which is still called the Coventry Act.

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crown will continue to observe those laws by which their wealth, dignity, liberty, are protected, any longer than they themselves also continue to observe them.

Nay more, all those claims of their rights which they continue to make against the crown, are encouragements which they give to the rest of the people to assert their own rights against them. Their constant opposition to all arbitrary proceedings of that power, is a continual declaration they make against any acts of oppression which the superior advantages they enjoy might entice them to commit on their inferior fellow subjects. Nor was that severe censure, for instance, which they concurred in passing on an unguarded violent action of their sovereign, only a restraint put upon the personal actions of future English kings; no, it was a much more extensive provision for the securing of public liberty;—it was a solemn engagement entered into by all the powerful men in the state to the whole body of the people, scrupulously to respect the person of the lowest among them.

And indeed the constant tenor of the conduct, even of the two Houses of Parliament, shows us that the above observations are not matters of mere speculation. From the earliest times we see the members of the House of Commons to have been very cautious not to assume any distinction that might alienate from them the affections of the rest of the people.* Whenever those privileges which were necessary to them for the discharge of their trust have proved burdensome to the community, they have retrenched them. And those of their members who have applied either these privileges, or in general that influence which they derived from their situation, to any oppressive purposes, they themselves have endeavoured to bring to punishment.

* In all cases of public offences, down to a simple breach of the peace, the members of the House of Commons have no privileges whatever above the rest of the people; they may be committed to prison by any justice of the peace; and are dealt with afterwards in the same manner as any other subjects. With regard to civil matters, their only privilege is to be free from arrests during the time of a session (a), and forty days before and forty days after; but they may be sued, by process against their goods, for any just debt during that time.

(a) This is incorrect. Members are free from arrest not only during the whole Parliament, but as long as they are members of Parliament. Their effects may, however, be attached and sold under execution.-Ed.