Commons wisely resolved to go to the root of the nation's grievances, and to show their new sovereign that he was raised to the throne for the sake of those liberties, by violating which his predecessor had forfeited it; . . . and thus the declaration of rights was indissolubly connected with the revolution settlement as its motives and condition."

The Act of 31 Charles II, called the Habeas Corpus Act, created no new rights. It afforded a more perfect protection to those already existing, and provided a prompt and effective remedy for their violation. It did not even create the writ of Habeas Corpus, but enlarged its effect. Its true character is described clearly and concisely by the sober and truth-telling historian of the English Constitution: "The essential clauses of Magna Charta are those which protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation." "No freeman," says the 29th chapter of Henry III's Charter, which, on the existing law, I quote in preference to that of John, the variations being not very material, “shall be taken or imprisoned, or be disseised of his freehold or his liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him nor send upon him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or delay to any man, justice or right." "It is obvious that these words, interpreted by any honest court of law, convey an ample security for the two main rights of civil society. From the era, therefore, of King John's Charter, it must have been a clear principle of our Constitution that no man can be detained in prison without trial. Whether the courts of justice framed the writ of Habeas Corpus in conformity to the spirit of this clause, or found it already in their register, it became from that era the right of every subject to demand it. That writ, rendered more actively remedial by the statute of Charles II, but founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty; and if ever temporary circumstances or the doubtful plea of political necessity shall lead men to look on its denial with apathy,

the most distinguishing feature of our Constitution will be effaced."*

Let us now inquire what was the English law of personal liberty which must have been in the minds and memories of the men who made our Constitution. English history was theirs also. They inherited Magna Charta, the Petition of Right, the Bill of Rights, and the common law, and lived under them as colonists. They were not ignorant of the heroic struggles, through eight centuries of growth and progress, by which these bulwarks of freedom had been built up by their ancestors. It is reasonable to suppose that they would adopt what they could of principles thus sanctified by the wisdom, valor and blood of their own race, and confirmed also by experience and fortunate results. Personal liberty was a right, born of the instinct of the Saxon. It was infringed by the rapacity and tyranny of Norman, that is to say of executive, power. The victory achieved by the people was to subject this power to the restraint of the Legislature, and the writ of Habeas Corpus was contrived as a fit instrument to apply that restraint. The law of England, therefore, is, that every man imprisoned by any authority, shall be entitled to have the cause of his commitment made known to a civil magistrate, and shall be bailed, tried or discharged.

It is obvious that this general law must of necessity be subject to certain exceptions. It is intended to protect civil rights, not to open them to attack, or to disarm the Government in the defence of its own existence against rebellion or treason, or of the nation against foreign enemies. Sedition or war may make it essential to the public safety that the personal liberty of individuals be for a time interfered with, in order that the rights of all may be preserved in the future. The English law intended to prevent the abuse of Executive power, not to trammel the just and necessary exercise of it. The statute of 31 Charles II is an Act of Parliament. It may therefore be repealed or suspended by Parliament, for the English Constitution recognizes no authority superior to Par

* 2 Hallam's Middle Ages, 41.

liament, which embodies and represents the whole power of the people. The theory is that Parliament is omnipotent, and that theory is underlaid by the great body of ancient inherited rights and liberties, which it is not presumed that the representatives of the nation will ever disregard. They never can, until Englishmen change their nature, forget their traditions, and abandon their customs. No formal enactment or written constitution made by a convention can be stronger than these habits and customs, or more clearly defined, and therefore none could add to the security of the people. It may indeed. be said that the Constitution of England is whatever Parliament chooses to make it; but it is safe so long as, by the laws of man's nature, Parliament cannot but choose to preserve it such as it is.

The power of discretionary arrest had been abused by the Crown. The public safety was made the pretext to cover the gratification of the selfish passions of the Monarch. Such is the natural, universal tendency of arbitrary and irresponsible power in the hands of an individual. The genius of the English people never accepted this power as a part of the Royal prerogative. They protested against it from time to time, through many centuries, as a violation of their ancient laws and customs. They made war upon it. At length they restrained it by the Habeas Corpus Act, and established, both practically and theoretically, the law of the land, that no man shall be deprived of his liberty by the Executive power of the Government without the assent and concurrence of the Legislative power; thus placing alike the freedom of the citizen and the safety of the nation where they ought to be placed,―under the protecting care of the whole Government. The law and the reason of it are stated with elegance and clearness by Blackstone.

"To bereave a man of his life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny through the whole Kingdom; but confinement of the person by secretly bringing him to gaol, where his suffer

ings are unknown or forgotten, is a less public, a less shocking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the State is in real danger, even this may be a necessary measure. But the happiness of our Constitution is, that it is not left to the Executive power to determine when the danger to the State is so great as to render this measure expedient; for it is Parliament only, or Legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected persons without giving any reason for so doing, as the Senate of Rome was wont to have recourse to a dictator,—a magistrate of absolute authority, when they judged the Republic in any imminent danger. . . . In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while in order to preserve it forever."

The public safety alone can, therefore, justify the denial of the benefits of the writ of Habeas Corpus to any English subject, and the Legislature only can suspend the statute of 31 Charles II, which confers the privilege of the writ. That is to say, no man can be imprisoned in England except for legal cause shown or on conviction after trial, unless by the action of all branches of the Government,-of the Legislature which suspends the Habeas Corpus Act, of the Executive which makes the arrest, and of the Judiciary also, which would deny the writ after an act of Parliament suspending it. The public safety is the legal care of all, and the motive and object of all in violating the personal liberty of the citizen.

But it might happen, as it has often happened in England, that the public safety shall be menaced by imminent danger when Parliament is not in session. In such a case, the only branch of Government in a condition to act is the Executive, whose peculiar province, indeed, is action, and to which the care of the nation is primarily intrusted; for the functions of the Judiciary apply to transactions that are past,—it has no spontaneous action, it does not originate or plan. For the time being, therefore, the Executive represents the whole Go

vernment, whose duty it is to preserve the nation from danger; and any Constitution that did not, in such cases, clothe the Executive with corresponding power, would be very defective. Such a Constitution could not pass through any period of peril of the kind supposed, without being disregarded during the crisis and altered by it, for the law of self-preservation is organic and vital in all Governments. The English Constitution, tested as it has been by the various fortunes of stormy centuries, is not without provision for every danger.

The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.

So entirely is the action of the Executive under the control of the Legislature, that the habit of Ministers to make arrests is not even mentioned by elementary writers on the subject, but the principle is broadly asserted, as in the quotation already given from Blackstone, that such arrests can be made only by authority of Parliament. In an edition of the Commentaries by Christian, Archbold, and Chitty, the practice of the Government is thus briefly and comprehensively stated in a note to the chapter on the Councils of the King: "The Privy Council, in cases of sudden emergency arising in the administration of affairs of state, for which the law has made no provision, assume the responsibility of applying such measures as they deem meet. But they do so under a heavy responsibility; for if Parliament, at its next meeting, should not approve their conduct and grant them an indemnity for acting without the license of law, they become liable upon a charge of misde