The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• De Lolme’s Life and Early Writings
• The Constitution of England
• Later Writings
• Editions of the Constitution of England
• A Note On the Text
• Acknowledgments
• The Constitution of England
• To the King.
• Book I
• Chapter I: Causes of the Liberty of the English Nation.—reasons of the Difference Between the Government of England, and That of France.—in England, the Great Power of the Crown, Under the Norman Kings, Created an Union Between the Nobility and the People
• Chapter II: A Second Advantage England Had Over France:—it Formed One Undivided State.
• Chapter III: The Subject Continued.
• Chapter IV: Of the Legislative Power.
• Chapter V: Of the Executive Power.
• Chapter VI: The Boundaries Which the Constitution Has Set to the Royal Prerogative.
• Chapter VII: The Same Subject Continued.
• Chapter VIII: New Restrictions.
• Chapter IX: Of Private Liberty, Or the Liberty of Individuals.
• Chapter X 1: On the Law In Regard to Civil Matters, That Is Observed In England.
• Chapter Xi 1: The Subject Continued. the Courts of Equity.
• Chapter XII: Of Criminal Justice.
• Chapter XIII: The Subject Continued.
• Chapter XIV: The Subject Concluded.—laws Relative to Imprisonment.
• Book Ii
• Chapter I: Some Advantages Peculiar to the English Constitution. 1. The Unity of the Executive Power.
• Chapter II: The Subject Concluded.—the Executive Power Is More Easily Confined When It Is One.
• Chapter III: A Second Peculiarity.—the Division of the Legislative Power.
• Chapter IV: A Third Advantage Peculiar to the English Government. the Business of Proposing Laws, Lodged In the Hands of the People.
• Chapter V: In Which an Inquiry Is Made, Whether It Would Be an Advantage to Public Liberty, That the Laws Should Be Enacted By the Votes of the People At Large.
• Chapter VI: Advantages That Accrue to the People From Appointing Representatives.
• Chapter VII: The Subject Continued—the Advantages That Accrue to the People From Their Appointing Representatives, Are Very Inconsiderable, Unless They Also Entirely Trust Their Legislative Authority to Them.
• Chapter VIII: The Subject Concluded.—effects That Have Resulted, In the English Government, From the People’s Power Being Completely Delegated to Their Representatives.
• Chapter IX: A Farther Disadvantage of Republican Governments.—the People Are Necessarily Betrayed By Those In Whom They Trust.
• Chapter X: Fundamental Difference Between the English Government, and the Governments Just Described.—in England All Executive Authority Is Placed Out of the Hands of Those In Whom the People Trust. Usefulness of the Power of the Crown.
• Chapter XI: The Powers Which the People Themselves Exercise.—the Election of Members of Parliament.
• Chapter XII: The Subject Continued.—liberty of the Press.
• Chapter XIII: The Subject Continued.
• Chapter XIV: Right of Resistance.
• Chapter Xv 1: Proofs Drawn From Facts, of the Truth of the Principles Laid Down In the Present Work.—1. the Peculiar Manner In Which Revolutions Have Always Been Concluded In England.
• Chapter Xvi 1: Second Difference—the Manner After Which the Laws For the Liberty of the Subject Are Executed In England.
• Chapter Xvii 1: A More Inward View of the English Government Than Has Hitherto Been Offered to the Reader In the Course of This Work.—very Essential Differences Between the English Monarchy, As a Monarchy, and All Those With Which We Are Acquainted.
• Chapter XVIII: How Far the Examples of Nations Who Have Lost Their Liberty, Are Applicable to England.
• Chapter Xix 1: A Few Additional Thoughts On the Attempts That At Particular Times May Be Made to Abridge the Power of the Crown, and On Some of the Dangers By Which Such Attempts May Be Attended.
• Chapter Xx 1: A Few Additional Observations On the Right of Taxation Which Is Lodged In the Hands of the Representatives of the People. What Kind of Danger This Right May Be Exposed To.
• Chapter XXI: Conclusion.—a Few Words On the Nature of the Divisions That Take Place In England.
• Guide to Further Reading
• Bibliography
• De Lolme’s Principal Publications
• Works Cited By De Lolme
• Classical Sources
• Modern Sources

CHAPTER XIV

The Subject concluded.—Laws relative to Imprisonment.

But what completes that sense of independence which the laws of England procure to every individual (a sense which is the noblest advantage attending liberty) is the greatness of their precautions upon the delicate point of Imprisonment.

In the first place, by allowing in most cases, of enlargement upon bail, and by prescribing, on that article, express rules for the Judges to follow, they have removed all pretexts which circumstances might afford of depriving a man of his liberty.

But it is against the Executive Power that the Legislature has, above all, directed its efforts: nor has it been but by slow degrees that it has been enabled to wrest from it a branch of power which enabled it to deprive the people of their Leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty.

The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprize, de odio & atiâ, and de homine replegiando.1 Those writs, which could not be denied, were an order to the Sheriff of the County in which a person was confined, to inquire 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 abolished all the others, is the writ of Habeas Corpus, so called because it begins with the words Habeas corpus ad subjiciendum.2 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 him, 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 reigns of the Tudors, and in the beginning 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 spirit of the times, and of their holding their places durante bene placito, were constantly devoted to the Court, declared, “that they could not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King, or by the Lords of the Privy Council.”3

Those principles and the mode of procedure which resulted from them, drew the attention of Parliament; and in the Act called the Petition of Right,4 passed in the third year of the reign of Charles the First, it was enacted, that no person should be kept in custody, in consequence of such imprisonments.

But the Judges knew how to evade the intention of this Act: they indeed did not refuse to discharge a Man imprisoned without a cause; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of Justice.

The Legislature again interposed, and in the Act passed in the sixteenth year of the reign of Charles the First, the same in which the Star-Chamber was suppressed, it was enacted that “if any person be committed by the King himself in person, or by his Privy Council, or by any of the Members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of Habeas Corpus; and that the Judge shall thereupon, within three Court days after the return is made, examine and determine the legality of such imprisonment.”5

This Act seemed to preclude every possibility of future evasion: yet it was evaded still; and, by the connivance of the Judges, the person who detained the prisoner could without danger, wait for a second, and a third writ, called an Alias and a Pluries, before he produced him.6

All these different artifices gave at length birth to the famous Act of Habeas Corpus, passed in the thirtieth year of the reign of Charles the Second, which is considered in England as a second Great Charter,7 and has finally suppressed all the resources of oppression (a) .

The principle articles of this Act are, to fix the different terms allowed for bringing a prisoner: those terms are proportioned to the distance; and none can in any case exceed twenty days.

2. That the Officer and Keeper 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 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 grieved, 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 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 grieved five hundred pounds.

6. No inhabitant of England (except persons 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 grieved a sum not less than five hundred pounds, to be recovered with treble costs,—shall be disabled to bear any office of trust or profit,—shall incur the penalties of a praemunire(a) , and be incapable of the King’s pardon.

BOOK II

[1. ]“Of hatred and ill will” and “of redemption of the man.”

[2. ]“You shall cause the body to be brought before.”

[3. ]De Lolme quotes the sense but not the exact words of Chief Justice Nicholas Hyde’s statement in the famous 1627 Five Knights’ Case, where five gentlemen sued out a writ of habeas corpus in King’s Bench following their imprisonment for failing to comply with the crown’s Forced Loan of 1626. The failure of the legal proceeding, as De Lolme reports, helped stimulate the parliamentary initiative in the 1628 Petition of Right; see above book 1, chapter 3, p. 49, note 3.

[4. ]See above, book 1, chapter 7, p. 70, note 3.

[5. ]The statute “for regulating the Privy Council and for taking away the court commonly called the Star Chamber” was enacted in 1641.

[6. ]The two writs directed a sheriff to produce a defendant who had not been located on the basis of an earlier writ.

[7. ]That is, a second “Magna Carta.” The Habeas Corpus Amendment Act was enacted in 1679.

[(a) ]The real title of this Act is, An Act for better securing the Subject, and for prevention of imprisonment beyond the Seas.

[(a) ]The Statutes of praemunire, thus called from the writ for their execution, which begins with the words praemunire (for praemonere) facias, were originally designed to oppose the usurpations of the Popes. The first was passed under the reign of Edward the First, and has been followed by several others, which even before the Reformation, 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 praemunire; and under that word were included in general all attempts to promote the Pope’s authority at the expence of the King’s. The punishment decreed for such cases, was also called a praemunire: it has since been extended again to several other kinds of offence, and amounts to “the imprisonment for life, and forfeiture of all goods and rents of lands during life.” See Blackstone’s Com. book iv. ch. 8. [[De Lolme draws selectively on Blackstone’s chapter-length “Of Praemunire” in Commentaries on the Laws of England, 4:102–18. “Praemunire facias” is “You shall cause to be forewarned.” “Execrabile Statutum” is “the execrable statute.”