CRITICAL COMMENT

BLACKSTONE'S COMMENTARIES (1765)

The oppression of an obscure individual gave birth to the famous habeas corpus act (31 Car. II. c. 2) which is frequently considered as another magna carta of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs . . . to the true standard of law and liberty.

SIR WM. BLACKSTONE, Commentaries on the Laws of England. B. III.

135-136.

CREASY (1859)

The Habeas Corpus Act also, which was passed in this reign (31 Car. II. c. 2), is of great constitutional value, though it by no means introduced any new principle into our system, or formed any such epoch in the acquisition of the national liberties as some writers represent. But it made the remedies against arbitrary imprisonment short, certain, and obtainable at all times and in all cases. . . .

These enactments, and especially the Habeas Corpus Act, make the name of Charles II. figure creditably in our statutebook, and there is one judicial decision of this reign which established a constitutional principle of the highest value, or rather which put an end to a long-continued abuse of the most perilous character.

E. S. CREASY, Rise and Progress of the English Constitution. 269, 272.

R. C. HURD (1877)

It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Carta (if indeed it is not much more ancient), that the statute of Charles II. was enacted; but to cut off the abuses by which the government's lust of power, and its servile subtlety of crown lawyers, had impaired so fundamental a privilege.

ROLLIN C. HURD, Right of Personal Liberty. 84.

PATERSON (1877)

On May 27, 1679, the Habeas Corpus Act passed, and, after the lapse of two centuries, it has been found by experience to have made the machinery revolve so promptly and cut so clearly into the marrow of all the mischiefs attending the possession of might, regardless of right, that no king or minister, led away with the dream of power, has since sought seriously to baffle or disable it. . . It is now a familiar code, and represents a whole armoury of strength, for every line and syllable of which each citizen would fight to the last, as for his household gods. Holt said every man should be concerned for Magna Charta. And the Habeas Corpus Act is only a natural sequel and development of Magna Charta. No dictator, whether single-handed or hydra-headed, can long breathe the same air with those who have caught the secret of its power. It appeals to the first principles of security, and to the law of nature, if any such there be. Its whole essence is nothing else than this. Every human being, who is not charged with or convicted of a known crime, is entitled to personal liberty. JAMES PATERSON, Liberty of the Subject, Security of the Person. II. 207-8.

TASWELL-LANGMEAD (1879)

It was subject, however, to three defects. (1) It fixed no limit on the amount of bail which might be demanded. (2) It only applied to commitments on Criminal or supposed Criminal charges; all other cases of unjust imprisonment being left to the habeas corpus at Common Law as it subsisted before this enactment. (3) It did not guard against falsehoods in the return. The first of these defects was remedied in 1689, by the Bill of Rights, which declared "that excessive bail ought not to be required." The other two (notwithstanding a serious attempt in 1757 to render the habeas corpus at Common Law more efficient) subsisted down to the year 1816 when they were at length removed by An Act for more effectually securing the liberty of the subject.' (56 Geo. III. c. 100.)

T. P. TASWELL-LANG MEAD, English Constitutional History. 521.

DICEY (1885)

The right to the writ of Habeas Corpus existed at common law long before the passing in 1679 of the celebrated Habeas Corpus Act (31 Car. II. cap. 2), and you may wonder how it has happened that this and the subsequent Act (56 Geo. III. cap. 100) are treated and (for practical purposes) rightly treated, as the basis on which rests an Englishman's security for the enjoyment of his personal freedom. The explanation is, that prior to 1679 the right to the writ was often, under various pleas and excuses, made of no effect. The aim of the Habeas Corpus Act has been to meet all the devices by which the effect of the writ can be evaded, either on the part of the judges, who brought to issue the same, and if necessary discharge the prisoner, or on the part of the gaoler or the person who bas the prisoner in custody. The earlier Act of Charles the Second applies to persons imprisoned on a charge of crime. The later Act of George the Third applies to persons deprived of their liberty otherwise than on a criminal accusation.

ALBERT V. DICEY, Introduction to the Study of the Law of the Constitution. 207, 208.

MAY (1887)

The writ of Habeas Corpus is unquestionably the first security of civil liberty. It brings to light the cause of every imprisonment, approves its lawfulness, or liberates the prisoner. It exacts obedience from the highest courts; Parliament itself submits to its authority. No right is more justly valued. It protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice. Yet this protective law, which gives every man security and confidence in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the state have been held sufficient to warrant this sacrifice of personal liberty, no minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has sus

pended, for a time, the rights of individuals, in the interests of the state.

SIR THOMAS ERSKINE MAY, The Constitutional History of England. II. 252, 253.

HANNIS TAYLOR (1889)

To put an end forever to every device, plea, or excuse by which the right to the actual benefits of the writ had been formerly made abortive, was finally passed the Habeas Corpus Act of 1679, the essence of which is that the chancellor and all of the judges are charged with the duty upon a proper application to direct the writ even he privileged places, including the islands of Jersey and Guernsey, requiring any person who is imprisoned to be actually and speedily brought before the court, together with the cause of the imprisonment, to the end that such court may either set him free, bail him, or remand him for a speedy trial, as justice may require.

HANNIS TAYLOR, Origin and Growth of the English Constitution. II. 382.

CHAPTER IX

THE BILL OF RIGHTS (1689)

SUGGESTIONS

In the second session of the Convention Parliament, which reassembled on the 25th of October, 1689, the Declaration of Right, which embodied the fundamental principles of the English Constitution and of the ancient franchises of the English nation, was confirmed with some slight but important amendments in a regular act of the Legislature. This Act is known as the Bill of Rights. The Convention Parliament had met on the 22nd of January, 1688, and a week later, the Commons passed their celebrated Resolution, in which, as James II. had abdicated the throne, it was deemed inconsistent with the safety of the kingdom that a Protestant government should be in the hands of a "Popish Prince." After conferences between William and the political leaders, as well as between the two Houses, it was resolved that a Committee of the Commons should consider what steps it might be advisable to take to secure law and liberty against the aggressions of future sovereigns.

The Declaration of Right was accordingly drawn up.

In studying the Bill of Rights it is necessary to understand thoroughly the reaction against Puritanism after the Restoration and the subsequent revival of Protestant feeling produced by James II.'s policy toward the church and the government. The position of William of Orange on the continent, both as military hero and political governor, must also be taken into consideration. All later Bills of Rights take their key-note from this famous document, of which Taswell-Langmead speaks as "the third great charter of English liberty and the coping-stone of the Constitutional Building." For Outlines and Material see Appendix A.

DOCUMENT

The Bill of Rights Oct. 25 (1689)

AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND SETTLING THE SUCCESSION OF THE Crown.