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 has 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.

The Statutes

of the Realm.

VI. 142-145.

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.

tion of

the offer of

Whereas the Lords Spiritual and Temporal, and Based upon Commons, assembled at Westminster, lawfully, the Declarafully, and freely representing all the estates of the Right which people of this realm, did upon the Thirteenth day accompanied of February, in the year of our Lord One Thousand the Crown to Six Hundred Eighty-eight, present unto their Majes- William and Mary. Feb. ties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain Declaration in writing, made by the said Lords and Commons, in the words following, viz.:

"Whereas the late King James II., by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom:

13, 1689.

(1.) By assuming and exercising a power of dis- In early pensing with and suspending of laws, and the execution of laws, without consent of Parliament.

(2.) By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power.

(3.) By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes.

times the dispensing power had been considered legal.

(4.) By levying money for and to the use of the Compare the Crown by pretence of prerogative, for other time following and in other manner than the same was granted by with the Parliament.

(5.) By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law.

(6.) By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.

grievances

Declaration of Independ

ence.

(7.) By violating the freedom of election of members to serve in Parliament.

(8.) By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament; and by divers other arbitrary and illegal

causes.

(9.) And whereas of late years, partial, corrupt, and unqualified persons have been returned, and served on juries in trials, and particularly diverse jurors in trials for high treason, which were not freeholders.

(10.) And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.

(11.) And excessive fines have been imposed; and illegal and cruel punishments inflicted.

(12.) And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied.

All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.

And whereas the said late King James II. having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from Popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be Summons to written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons to represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hun

the Convention Parliament.