CHAPTER IV.

CONSTITUTIONAL AND STATUTORY GUARANTEES OF THE RIGHT OF PERSONAL LIBERTY IN ENGLAND.

At what time the right of personal liberty first became a special subject of political concern in England, in what manner it was entrenched in enduring constitutional enactments, with what spirit and success it was defended when assailed by arbitrary princes, and how it was finally secured by increasing the efficiency of the writ of habeas corpus, are inquiries full of interest and instruction to the American student, whose colonial ancestors claimed as their "birth-right" and finally defended with their lives, "the rights, liberties and immunities of Englishmen."

These inquiries lead to the subjects considered in the following sections:

SECTION I. Magna carta.

II. THE PETITION OF RIGHT.

III. THE BILL OF RIGHTS.

IV. THE HABEAS CORPUS ACT, 31 Car. 2, c. 2.

SECTION I.

MAGNA CARTA.

In the month of June, A. D. 1215, the Barons of England with their retainers, "a numerous host, were encamped upon the grassy plain of Runingmede," to demand of their sovereign, and, if necessary, to enforce by the sword, an acknowledgment of their rights and liberties and a covenant to protect them. Unwilling to concede what was demanded, yet unable to resist, King John finally signed, and sealed, and swore faithfully to observe, the Great Charter.

This celebrated instrument, although in form a grant of certain rights and privileges by the sovereign, was essentially a solemn acknowledgment of those rights and privileges; and an agreement that for the future they should be maintained "bona fide and without evil subtilty."

It has always been regarded as a fundamental law. "It was for the most part," says Coke, "declaratory of the principal grounds of the fundamental laws of England; and for the residue it is additional to supply some defects of the common law." 2 Inst., proeme, and pp. 65, 77, 78, 108.

"This famous deed," says Hume, "either granted or secured very important liberties and privileges to every order of men in the kingdom; to the clergy, to the barons and to the people. The former articles of it contain such mitigations and explanations of the feudal law as are reasonable and equitable; and

the latter involve all the chief outlines of a legal government, and provide for the equal distribution of justice and free enjoyment of property; the great objects for which political society was at first founded by men, which the people have a perpetual and inalienable right to recall, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention." 1 Hist. Eng., 219.

"The great constitutional enactments of Magna Carta have, from the very earliest times, been regarded in that light, and treated not as temporary regulations, but as the fundamental institutions of our government and laws. Their confirmation was repeatedly exacted from the reigning sovereign by our parliaments, not because the Great Charter was supposed to become invalid without such ratification, but in order to impress more solemnly on impatient princes and profligate statesmen their duty of respecting the great constitutional ordinances of the realm." Creasy, Const., 225.

"As this was," says Hallam, "the first effort towards a legal government, so it is beyond comparison the most important event in our history, except that revolution without which its benefits would rapidly have been annihilated. The constitution of England has indeed no single date from which its duration is to be reckoned. The institutions of positive law, the far more important changes which time has wrought in the order of society during six hundred years subsequent to the Great Charter, have undoubtedly lessened its direct application to our present

circumstances; but it is still the keystone of English liberty." 2 Mid. Ages, 341.

Sir James Mackintosh says of it: "It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered gradually and slowly. It gave out on each occasion only as much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear. For almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded. Its effect in these contests was not altogether unlike the grand process by which nature employs snows and frosts to cover her delicate germs, and to hinder them from rising above the earth till the atmosphere has acquired the mild and equal temperature which insures them against blights.

"On the English nation, undoubtedly, the Charter has contributed to bestow the union of establishment with improvement. To all mankind it set the first example of the progress of a great people, for centuries, in blending their tumultuary democracy and haughty nobility with a fluctuating and vaguely limited monarchy, so as at length to form from these discordant materials the only form of free government which experience had shown to be reconcilable with widely extended dominions. Whoever in any future age or yet unborn nation may admire the felicity of the expedient which converted the power of taxation into the shield of liberty, by which discretionary and secret imprisonment was rendered

impracticable, and portions of the people were trained to exercise a larger share of judicial power than ever was allotted to them in any other civilized state, in such a manner as to secure, instead of endangering public tranquillity; whoever exults at the spectacle of enlightened and independent assemblies, which under the eye of a well informed nation, discuss and determine the laws and policy likely to make communities great and happy; whoever is capable of comprehending all the effects of such institutions with all their possible improvements upon the mind and genius of a people, is sacredly bound to speak with reverential gratitude of the authors of the Great Charter. To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtue which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice, if, indeed it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers."

The "crowning glories" of Magna Carta are those "essential clauses which protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation."

39. Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur aut utlagetur, aut aliquo modo destrua