expressed, for which by law he ought to be committed, detained or restrained.

"II. That the writ of habeas corpus cannot be denied, but ought to be granted to every man that is committed or detained in prison or otherwise restrained by command of the King, the Privy Council or any other."

Not content with resolutions, they proceeded to the more efficient work of a declaratory statute, commonly called the PETITION OF RIGHT, by which it was designed to subject the King to the power of the law and to bring the right of personal liberty explicitly under its protection. The King, after attempting to evade giving his consent, was at length-but not until after the "auricular taking of the judges' opinions"-compelled to accede to the petition. In the petition it was, amongst other things, recited and declared as follows:

"III. And whereas, also, by the statute called 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or impris oned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.

"IV. And in the eight-and-twentieth year of the reign of King Edward III., it was declared and enacted by *authority of Parliament, that no man, of what [88 estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.

"V. Nevertheless, against the tenor of said statutes and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their de

tainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council and yet were returned back to several prisons, without being charged with anything to which they might make answer according to law."

In the subsequent sections the King was petitioned to declare that, "as their rights and liberties according to the laws and statutes of this realm,"-"no freeman, in any such manner as is before mentioned, be imprisoned or detained," &c., &c.

The King having privately obtained from the judges a construction of the petition to suit his wishes, granted it. It was then supposed that the people were effectually protected against illegal exactions, arbitrary commitments, quartering of soldiers or sailors, and infliction of punishment by martial law.

"Bonfires were kindled all over London, and the whole nation was thrown into a transport of joy." But the Parliament was soon after dissolved by the 89] *King who was incensed at the conduct of those advocates of popular rights, by whose "disobedient and seditious carriage," he said, "we and our regal authority and commandment have been so highly contemned as our kingly office cannot bear, nor any former age can parallel."

Prerogative then reigned. The obnoxious members of the late Parliament were seized and imprisoned for words spoken in debate. The writ of habeas corpus was rendered powerless even to liberate them on bail by the servile procrastination of the court who dared not expressly to deny the right. And finally JOHN ELLIOTT, the most distinguished leader of the popular party, doomed to imprisonment and loaded with fines by a court usurping jurisdiction, died in the Tower-a martyr to parliamentary freedom of speech.

1 1 Hallam's Const. Hist. 390.

Denzil Holles, one of his associates in the royal persecution afterwards, being then a peer, brought the record of this judgment in the King's Bench by writ of error before the House of Lords, by whom it was reversedthus establishing the great principle of free speech in Parliament and exclusive jurisdiction of the House over its members for alleged contempts therein.'

Mention ought to be made, in this connection, of the Bill of Rights, another fundamental statute passed in 1689, which, with the Petition of Right and the Great Charter, constitute, according to Lord Chatham, "the Bible of the English Constitution," to which appeal is to be made on every grave political question.

The Bill of Rights, in some respects the archetype of our own Declaration of Independence, recites the injuries and usurpations of the late King James II., by which he "did endeavor to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom," and then "for the vindicating their ancient rights and liberties," "as their ancestors in like case have usually done," declares:

"1. That the pretended power of suspending laws, or the execution of laws, by regular authority, without consent of Parliament, is illegal.

"2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

"3. That the commission for creating the late Court of Commissioners for ecclesiastical causes, and all other

11 Hallam's Const. Hist. 424.

commissions and courts of like nature, are illegal and pernicious.

"4. That levying money for or to the use of the crown, by pretence and prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal.

91] *5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

"6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.

"7. That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law.

"8. That election of members of Parliament ought to be free.

"9. That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.

"10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

"11. That jurors ought to be duly empanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

"12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

"13. That for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently."

Macauley sees in this instrument an inexhaustible stock of statute-germs, adequate for all the wants of posterity.

"The Declaration of Right," says he, “though it made nothing law which had not been law before, contained

the germ of the law which gave religious freedom to the Dissenter, of the law which secured the independence of the judges, of the law which limited the duration of Parliaments, of the law which *placed the liberty of the [92 press under the protection of juries, of the law which prohibited the slave trade, of the law which abolished the sacramental test, of the law which relieved the Roman Catholics from civil disabilities, of the law which reformed the representative system-of every good law which has been passed during a hundred and sixty years, of every good law which may hereafter, in the course of ages, be found to promote the public weal, and to satisfy the demands of public opinion."

991

SECTION IV.

THE HABEAS CORPUS ACTS, 31 CAR. II., AND 56 GEO. III.

Although the writ of habeas corpus was greatly prized, and gradually superseded all other common law writs devised to relieve in cases of illegal imprisonment, it be came in lapse of time the subject of great abuses. Delays, scarcely less grievous than denial, were frequently practised by the courts in granting it; and, when granted, tardy execution too frequently tolerated. Some evasions were remedied by the statute of 31 Car. I. c. 10, § 8, which provided that if any person be committed by the King himself in person, or by his Privy Council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the Court of King's Bench or Common Pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality *of the [93 commitment and do what to justice shall appertain, in delivering, bailing or remanding such prisoner.

1 Macauley's Hist. Eng. 394.