Images de page

quire into the causes of his confinement; and, according to the circumstances of his case, either to discharge him completely, or upon bail.

But the most useful method, and which even, by being most general and certain, has tacitly abolisbed all the others, is the writ of Habeas Corpus, so called, because it begins with the words, Habeas corpus ad subjiciendum. This writ being a writ of high prerogative, must issue from the Court of King's Bench : its effects extend equally to every county ; and the king by it requires, or is understood to require, the person who holds one of his subjects in custody, to carry him before the judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain bim according as the judge shall decree.

But this writ, which might be a resource in cases of violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all against the prerogative of the prince, especially under the sway of the Tudors, and in the biginning of that of the Stuarts. And even in the first years of Charles the First, the judges of the King's Bench, who in consequence of the to make due returns, or not delivering to the prisoner or bis agent, within six hours after demand, a copy of the warrant of commitment, , or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in the act), shall for the first offence forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office.

3. No person, once delivered by Habeas Corpus shall be recommitted for the same offence, on penalty of five hundred pounds.

4. Every person committed for treason or felony, shall, if he require it, in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be produced at that time: and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence.

5. Any of the twelve judges, or the lord chancellor, who shall deny a writ of Habeas Corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party aggrieved five hundred pounds.

6. No inhabitant of England (except pera sons contracting, or convicts praying to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions,-on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than five hunded pounds, to be recovered with treble costs,-shall be disabled to bear any office of trust or profit,-shall incur the penalties of a præmunire,* and be incapable of the king's pardon.

+ The statutes of præmunire, thus called from the writ for their execution, which begins with the words prænu. nire (for præmonere) facias, were originally designed to oppose the usurpations of the popes.

The first was passed under the reign of Edward the First, and was followed by several others, which, even before the refor. mation, established such effectual provisions as to draw upon one of them the epithet of execrabile statutum. The offences against which those statutes were framed were likewise distinguished by the appellation of præmunire ; and under that word were included all attempts to increase the power of the pope at the expense of the royal authority. The punishment decreed for such cases, was also called a præmunire : it has since been extended to several other kinds of offence, and amounts to imprisonment at the king's pleasure, or for life, and forfeiture of all goods and rents of lands

[ocr errors]

appointed annually ; which was in great measure the same as keeping the management of it to themselves ; whence it resulted, that the people, who, whatever may be the frame of the government, always possess after all, the reality of power, thus uniting in themselves with this reality of power the actual exercise of it, in form as well as in fact, constituted the whole state. In order therefore legally to disturb the whole state, nothing more was requisite than to put in motion a certain number of individuals.

In a state which is small and poor, an arrangement of this kind is not attended with any great inconveniences, as every individual is taken up with the care of providing for his subsistence, as great objects of ambition are wanting, and as evils cannot in such a state, ever become much complicated. In a state that strives for aggrandizement, the difficulties and danger attending the pursuit of such a plan inspire a general spirit of caution, and every individual makes a sober use of his rights as a citizen.

But when, at length, those exterior motives cease, and the passions, and even the virtues, which they excited, are thus reduced to a state of inaction, the people turn their eyes back


towards the interior of the republic; and every individual, in seeking then to concern himself in all affairs, seeks for new objects that may restore him to that state of exertion which habit, he finds, has rendered necessary to him, and aims at the exercise of a share of power which small as it is, yet flatters his vanity.

As the preceding events must have given an influence to a certain number of citizens, they ayail themselves of the general disposition of the people, to promote their private views : the legislative power is thenceforth continually in motion ; and as it is badly informed and falsely directed, almost every exertion of it is attended with some injury to the laws, or the state.

This is not all; as those who compose the general assemblies cannot, in consequence of their numbers, entertain any hopes of gratifying their private ambition, or, in general, their private passions, they at least seek to gratify their political caprices, and they accumulate the honours and dignities of the state on some favourite whom the public voice happens to raise at that time.

But, as in such a state there can be, from the irregularity of the determinations of the people, no such thing as a settled course of

« PrécédentContinuer »