of state, and in case of war, parliament was to be immediately summoned. The members of the council of state were also named in the instrument: and the chief were Lambert, Desborough, Montague, Skippon, Antony Ashley Cooper, and six others. On the death of any of these, the vacancy was to be filled up by the Protector from a list of six names chosen by parliament. All legislative power was reserved to parliament, but the Protector might suspend the coming into operation of any act for twenty days. Parliaments were to be elected by the new constituencies proposed by the Long Parliament, in accord with the Agreement of the People. They were to be held every third year; but no parliament was to be dissolved till it had sat five months. By these arrangements it was hoped to combine the freedom of republican institutions with the practical efficiency of a single sovereign acting through a cabinet. In reality, except when parliament was sitting, it gave almost unlimited power to the Protector. Cromwell at once accepted the post of Protector, and was solemnly inaugurated in Westminster Hall, Lambert taking the leading share in the ceremony.

CYRIL RANSOME, An Advanced History of England. 600.

MEDLEY (1898)

From 1642 to 1660 the English Constitution was practically in abeyance; but the expedients which were evoked to fill the . void, formed no unimportant element in the future development of the constitution. For, in the first place, the period of the Commonwealth was distinguished by an attempt to change the whole current of English history. As things have worked themselves out, we have a constitution which contains no fundamental laws unalterable by the three Estates in Parliament assembled, but leaves that body the legal sovereign with control of the executive. But had the constitutions projected under the Commonwealth been permanent, the development of our system would have been hampered, if not checked, by fundamental laws, and the written constitution would have been sovereign instead of Parliament; while the executive and legislature would have existed independently of each other, as in the United States at the present day. In the second place,

Cromwell was perhaps chiefly hindered by his conservatism. For he fell back on old expedients, and tried, as far as might be, to reproduce the old constitution without those links of historical association which had bound its several parts together, and with that balance of powers which his training in the ranks of the parliamentary party had led him to regard as the ideal. Thus the Instrument of Government set up an executive of a Protector and Council with co-ordinate authority, and a Parliament of one chamber independent of the Council, unable on the one hand to alter the constitution, and on the other hand to be itself adjourned or dissolved for five months without its own consent.

DUDLEY JULIUS MEDLEY, A Student's Manual of English Constitutional History. 305-306.

CHAPTER VIII

HABEAS CORPUS ACT (1679)

SUGGESTIONS

THE document for the Habeas Corpus Act is intituled "an act for the better securing of the liberty of the subject and for prevention of imprisonments beyond the seas." Various attempts have been made unsuccessfully to obtain the passage of two Bills, one to give a more expeditious use of the writs of Habeas Corpus in Criminal matters the other to prevent imprisonment in jails beyond the seas.

The old principle of relief from arbitrary arrest laid down in Magna Charta, and applied throughout the succeeding constitutions, always lacked a short and easy process of establishing the fact of illegal detention. At length in 1679 this famous act was passed; although defective in the promises as to bail and common law and falsehood, this statute stands as one of the most important landmarks of human liberty. It should be studied in its relation to the growth of the liberty of the subject.

For Outlines and Material, see Appendix A.

DOCUMENT

Habeas Corpus Act (1679)

Extracts from the Provisions of the Statute, 31° Car. II. c. 2.

The Statutes

935-938.

See Appen

1. That on complaint and request in writing by or Transliteraon behalf of any person committed and charged with tion from any crime (unless committed for treason or felony of the Realm, expressed in the warrant; or as accessory, or on sus- V, picion of being accessory, before the fact, to any dix (B) petit-treason or felony; or upon suspicion of such for full text. Note Magna petit-treason or felony, plainly expressed in the war- Charta, Art. rant; or unless he is convicted or charged in execu- 39-40. tion by legal process), the lord chancellor or any of the twelve judges, in vacation, upon viewing a

There are various kinds made use of

copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable imin England; mediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature.

and the same, and still others, in the United States.

Blackstone

2. That such writs shall be endorsed, as granted in pursuance of this act, and signed by the person awarding them.

3. That the writ shall be returned and the prisoner counts this a brought up, within a limited time according to the "high prerogative." distance, not exceeding in any case twenty days.

4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority, (specified in the act,) shall for the first offence forfeit £100 and for the second offence £200 to the party grieved, and be disabled to hold his office.

5. That no person, once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of £500.

6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail; unless the king's witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence; but that no person, after the assizes shall be open for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but shall be left to the justice of the judges of assize.

7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery, or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of £500.

broken in reign of

brought about the

8. That this writ of habeas corpus shall run This act, as into the counties palatine, cinque ports, and other expressed in early writs, privileged places, and the islands of Jersey and was so often Guernsey. 9. That no inhabitant of England (except per- Charles I., sons contracting, or convicts praying, to be trans- that it ported; or having committed some capital offence in the place to which they are sent) shall be sent parliamenprisoner to Scotland, Ireland, Jersey, Guernsey, or tary inquiry ending in the any places beyond the seas, within or without the Petition of king's dominions; on pain that the party commit- Right, 1628. ting, his advisers, aiders, and assistants, shall forfeit Broken in the Transto the party grieved a sum not less than £500 to portation be recovered with treble costs; shall be disabled to Act in reign bear any office of trust or profit; shall incur the of George penalties of praemunire; and shall be incapable of the king's pardon.

CONTEMPORARY EXPOSITION

BISHOP BURNET (1724)

III.

It was carried by an odd artifice in the House of Lords. Lord Grey and Lord Norris were named to be the tellers. Lord Norris being a man subject to vapours, was not at all times attentive to what he was doing, so, a very fat lord coming in, Lord Grey counted him for ten as a jest at first, but seeing Lord Norris had not observed it, he went on with this misreckoning of ten; so it was reported to the house, and declared that they who were for the bill were the majority, though it indeed went on the other side; and by this means the bill was past.

GILBERT BURNET, History of His Own Time. I. 485.