The temporal Liberty of Subjects in England, by Anthony Ellis, D. D. late Bifhop of St. David's.

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Sit is of the greatest importance, in order to beget in the minds of men a just value for the civil conftitution, under which it is our happiness to live, we fhall begin with reprefenting the provifions which have been made, by the laws of our country, in favour of the fubject, refpecting criminal matters: and thefe we thall collect in the order in which they arife in the work before us.In this manner does our author introduce his fubject.— In treating of the freedom of the fubjects in England, the thing that naturally firit into view is, the fecurity we have of not being long detained in prifon, without juft caufe or due procefs of law. Our condition in this refpect, differs not a little to our advantage, from thofe of most other fubjects in Europe. I need not inform the public, how every one in France is liable to be treated without any charge made against him upon oath, or any examination taken of him by a magiftrate, an order or writ under the fignet royal, is fufficient to caufe him, whatever his rank or quality is, to be not only arrefted, but to be carried inftantly away to any prifon in the kingdom, and there to be kept in May, 1766.

the clofeft confinement, without any means of procuring his liberty, as long as the court hall think fit to deny it: however able he might be to give fuch proofs of his innocence, as would be fatisfactory to impartial judges, if his friends or agents were allowed to come to him, or he had the ufe of his papers, or knowledge of his accufers. He may be incapable of doing this when fecluded from all correspondence, and when he is not fo much as examined at all. At this rate he may continue for a number of years in doleful folitude, to the great impairment of his health, and diforder of his eftate, and if at laft he gets out, he has no remedy; no action of falfe imprifonment or damages. The ministers by whofe procurement perhaps he was imprifoned, are fafe under the royal prerogative.

There have been times when this fame power has been claimed, and with the like rigour exercifed by the kings of England; not that there was any just ground of law for it, for the antient Saxon conftitution, allowed men to be bailed in all cafes. By the common law antiently, fays lord Coke (a), a man accused and indicted of high treafon, or of any felony whatsoever,

was bailableupon good security; so that the goal was only his pledge and furety, who could find no other for the law of England, fays the fame learned author, is a law of mercy, that the innocent fhall not be worn or wafted by long imprisonment, but fpeedily come to his trial, and that prifoners for criminal caufes be humanely dealt withal. But after the Norman conqueft it was provided, that not only in the cafe of homicide and high treaton, but in most other criminal caufes, the offender was not bailable (b). And even when innocent perfons were commited and detained in prifon, they were obliged to fue out writs De odio et atia, from the court of chancery for their relief (c). Several of our kings after this æra had little regard to the part of the common faw, but on the flightelt pretences, or unjutt fufpicions, imprisoned men of all ranks, and kept them in confinement as long as they pleafed. The fame kind of tyranny was practiled by the minifters of King Henry II. John, &c. and even the barons in king Edward the firft's time, were very delirous of having the fame power to imprison perfons at their will, for trefpafles done in their parks and ponds, but the king would not grant it (d).

In oppofition to thefe practices, the great charter of 9 Henry III. provided, that no free man fhould be taken or imprifoned. Neither, fays the king (e), will we go, or fend upon him, unlefs by the legal judgment of his peers, or by the law of the land."-But how folemn foever this charter was granted and confimed, yet in a little time there were frequent breaches made upon it, which plainly appears from a fpeech made in parliament by the archbishop of Canterbury, 18 Edw. I. (f); among other grievances NOTE.

(b) Coke's 2d Inft. p. 49. 186.

(c) See an account of the writs de otio et alia, in Bacon's government of EngJand, par. 1. p. 168. By the antient law of the land, villains might be impr.foned by their lords without caufe.

(d) See Stat Merton.

(e) Nullus liber homo capiatur, vel imprifonetur -nec fuper eum ibimus, nec Jupra eum mittamus, nifi per legale judicium parium fuorum, aut per legem terra. Mag. Char. Coke's 2d Init. p. 45.

(F) See Echard's hift. Vol. I. p. 309.

he represented, "That very many freemen of the kingdom, had, without any guilt on their part, been committed by the king's minifters to divers prifons, as if they had been slaves of the meaneft degree, therein to be kept; of whom some died in prifon, of hunger or grief, and the weight of their chains. From others they extorted infinite fums of money for their ranfoms (g)." This fpeech, with the notoriety of the facts, had fuch an influence upon the parliament, that they inficted fevere punishments upon fome of the minifters and others.

In the fifth year of the reign of Ed. ward III. chap. 9. it was enacted, "That no man from henceforth fhall be attacked by any accufation, nor fore-judged of his life or limb; nor his lands, tenements, goods nor chattels, feized into the king's hands, against the form of the great charter, and law of the land."--And again, in the 25th of the fame reign, there was another act made more full and expreffive, for it fays, "That from henceforth none fhall be taken by petition or fuggeftion, made to our lord the king, or his council, unless it be by indictment or prefentment of his good and lawful people of the fame neighbourhood, where fuch deeds be done, in due manner, or by procefs made by writ original at the common law: and that if any thing be done against the fame, it thall be holden for none (h)."

Again, in the 28th of the fame reign, it is enacted, "That no man, of what ftate or condition that he be, fhall be put out of land or tenement, nor taken, nor imprisoned, nor difinherited, nor put to death, without being brought in anfwer by due procefs of law (i).”

Allo in 38th Edward III. ch. 18, it is enacted, that when fuggeftions are made by any perfons against others, the former fhall find fureties before the king's grand council," to purfue their fuggeftions, and incur the fame pain the others fhould have had, if he were attainted, in cafe their fuggeftions be found evil; and that ΝΟΤΕ.

(g) Petvt. Mifc. Parliament. Lond. 1680, in the appendix.

(b) Sir Robert Cotton, pofth. p. 227, fays, That this law was made upon the commitment of divers perfons to the tower, no man yet knoweth for what.'

(i) 3d Bulitrode 47. Hale's hift. P. C. ch. 13. b. ii.

then

then the process of law be made against them, without being taken and imprisoned, against the form of the faid charter, and other ftatutes (k)." And yet again, 42d Edward III. ch. 3d. "It is affented and accorded for the good governance of the commons, that no man be put to anfwer without prefentment before the king's juftices, or matters of record, or by due procefs of writ original, according to the old law of the land; and if any thing from henceforth be done to the contrary, it fhall be void in the law, and holden for error."

One would think that here had been laws enough to fecure this point of liberty; but in the reign of Henry VII. there was an act of parliament passed, that justices of peace fhould have power to determine the validity of indictments (1): in virtue of which Empfom and Dudley proceeded their manner was to caufe divers fubjects to be indicted of fundry crimes, and so far forth to proceed in form of law; but when the bills were found to commit them, and nevertheless not to produce them in any reasonable time to their anfwers, but to fuffer them to languifh long in prifon, and by fundry artful devices and terrors, to extort from them great fines and ranfoms, which they termed compofitions and mitigations (m)."The high commiffioned ecclefiaftical court, erected in the reigns of Edward VI. and Elizabeth, to enquire of, and provide against papifts and heretics, had a power to fine and imprison them; which was accordingly practifed in many cafes (n). And though great complaint was made, in the latter of thefe reigns, by all the judges and the barons of the exchequer (o), yet ftill the fame claim was continued, and carried into execution on the part of the crown, and the judges did not continue to oppofe it, or not with any effect; for in James the firft's reign, Sir ΝΟΤΕ.

(k) See Hale's obfervations on Mag. Char. and the feveral ftatutes of Edward III, here quoted: Hift. P. C. ch. 13. b. ii. p. 109.

(1) See the act 11. Hen. VII. ch. 3. which is not in the ftatute books, but in Coke's 4 inft. P. 41.

(m) Petyt. Misc. Parl. p. 208.
(n) See Coll. Ecclefiaftical Hit.

(o) Lord chief juftice Anderfon's reports, p. 297. in Mid. Temp. Libr.

W. Raleigh represented a justice of peace, and committed men with impunity. At laft the judges came to maintain in Weitminter hall, that the crown and its minifters might lawfully imprison and detain men in cuftody, in feveral cafes, which were before dilallowed. Judge Dodderidge gave it as his opinion (p), that the king may, by his abfolute power, commit a nobleman to prifon, durante hene placito fuo; and in the 3d Car. I. Sır John Corbett and others were brought into the king's bench, and the caufes of their commitment was declared by the lord chief juftice, and other judges, per Speciale mandatum domini regis, without affigning any other cause (q).

Therefore in vindicating this great point of liberty, the lords fpiritual and temporal, and the commons of England in parliament affembled, 1627, 3d Car. I. by their joint petition to that prince, declared and requested, as their birthright, that no freeman should be taken or imprisoned, or be outlawed or exiled, or in any manner destroyed, por difinheited, nor put to death without being brought to answer by due process of law (r). To which the king answered, without any faving of the rights of the crown, Sait droit fait comme il eft defiré (s); and afterwards we are informed that this bill of rights paffed into an act (t).

But as there were afterwards feveral illegal commitments and imprisonments, during the course of this reign, and the following ufurpation, and in the next reign a great difpofition in the minifters to extend the prerogative royal; and as theriffs, goalers, &c. often ufed oppreffive delays, even on frivolous excufes, which were very expenfive to prifoners, before they would make returns for their relief, it was therefore at last found necetlary to fettle that matter once for all, in the noted ftatute of 31ft Car. II. called the Habeas Corpus: wherein it is provided, that in the cafe of any perfon, not im prifoned for treafon and felony, fpecially expressed in the warrant for his commitment: if a writ of Habeas Corpus fhail be NOTE.

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(p) Treatifes of the nobility, p. 159. Edit. Lond. 1658.

(q) State trials, Vol. 7. p. 140.
(r) English Liber. p. 180.
(s) Ibid. p. 185.

(1) See the bill of rights in Rapin, 1627. I i 2 brought