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since God works by means, never shall the farce of a state religion terminate, till all who think and feel as we do shall awake from their unworthy lethargy, and rise up in their moral greatness, and put on their moral strength, and clothe themselves with zeal as with a cloke, and lift up their voices in the high places as the sound of many waters, and cause the tread of their footsteps to be heard wherever influence can reach.
If then, as we conceive, our principles have the image and superscription of the Great King stamped upon them, let them be circulated through this his rightful province as the current coin. Let no personal exertions that may be required, no measure of odium, no mean questions of profit and loss, no frown on the one hand nor fawning smile on the other, deter us from the unflinching advocacy of our principles and performance of our duty: for if religion finds one a crawling thing, a craven creature, it leaves him not in habits of meanness, but raises him to the stature of a man, bids him do feats of greatness, and sets before him examples of moral heroes who have nobly stood alone and carried on a contest for truth single-handed. Henceforth let there be no excuse, no shrinking back again into the narrow shell of indolent slothfulness and coward retreat: only let the Dissenters of Great Britain burst forth from the swaddling bands in which ignorance and prejudice would confine and cramp them, let them cast off the wrinkled and withered skin of an obsolete age,' and we shall be able to adopt, with cheerful and grateful exultation, the language of a political Dissenter of other days, who will be proudly remembered by every undegenerate Englishmen so long as the Paradise Lost of Milton shall continue to be read : Methinks I see a noble and puissant nation rousing herself, like a strong man after sleep, and shaking her invincible locks. Methinks I see her, as an eagle, muing her mighty youth, and kindling her undazzled eyes at the full mid-day beam, purging, 6 and unscaling her long abused sight at the fountain itself of "heavenly radiance; while the whole tribe of timorous and 'flocking birds, with those also that love the twilight, flutter about amazed at what she means, and in their envious gabble would prognosticate a year of sects and schisms.'
Art. VI. Report of the Case of the Canadian Prisoners, with an
Introduction on the Writ of Habeas Corpus. By ALFRED A. Fry,
HE case of the Canadian prisoners is one with which the
public at large have little sympathized, and which they have taken little pains to understand. A strong feeling, it must be owned, took possession of the respectable classes of society, adverse to the contention in their favor. It was supposed that they had been guilty of a very serious crime, which they had themselves voluntarily confessed, and the just and merciful punishment for which, they were factiously endeavouring to arrest the execution. We do not intend to discuss this question ; but we feel bound in justice to say, that we are satisfied many of our readers will be extremely surprised with us to find, from this Report,* that several of the prisoners distinctly swore, in affidavits laid before the court during part of the proceedings, that they 'had never been arraigned, tried, convicted, or sentenced by any court in Canada or elsewhere, and that they were wholly ignorant of the term for which they were detained.' We have also reason to believe that some of them have been much more sinned against than sinning,'—have been little mixed up with the proceedings of the revolt,--are men of unimpeachable moral character, and are every way worthy of the efforts which have been made on their behalf by some well-known friends of civil and religious liberty. Under this conviction, which has been greatly strengthened by personal intercourse with some of the prisoners, we rejoice that her Majesty's ministers have consented to their discharge, on the simple condition of their not returning to Canada.
We have observed that we do not intend to go into the merits of the case of the prisoners, as presented in the arguments of their counsel, on the applications to the courts of Queen's Bench and Exchequer for their discharge by Habeas Corpus. Some very important points of Constitutional law were raised on those arguments, in relation to the powers of our Colonial governors and Legislatures, and the effect of judicial proceedings had in the Colonies, when the parties are in this country. We must refer such of our readers as feel an interest in these subjects to Mr. Fry's report of the case ; where they will find a concise and summary account of the proceedings and arguments, both on the part of the crown and of the prisoners. Our object in now directing
* P. 103.
attention to this important constitutional case,' as Mr. Fry justly calls it, is to present before our readers a view of that muchlanded, but really little understood, yet vital security for our liberties, the writ of Habeas Corpus; in relation to which this case has been the means of raising some great and interesting points, and has produced a history of it from the learned author of the Report, in the shape of an Introduction.
Mr. Fry tells us that 'the inquiring reader will be probably ‘much surprised to find that a writ of so just and wide a celebrity, and of so vitally important a character, has received but a sery general notice from our legal writers, although they have been ' fully alive to its value;' and after referring to the eulogistic expressions, in reference to it, of Sir William Blackstone, in his Commentaries, observes: “The information, concerning this writ,
thus warmly and justly eulogized, is only to be found in scat'tered parts of various writers, and therefore I have presumed
that an attempt to deduce, historically, its existence and modifi'cations, will not be thought a useless one, although the task 'must of necessity be performed in a summary manner.'*
We have, then, a history of this great writ presented to us. It must be necessarily of the highest interest to every Englishman, for the writ in question is one of the proud and peculiar characteristics of our free land. We are told by the learned author of the work before us, 'that to expect it in oriental despotisms would be hoping to gather grapes from thorns, and figs from thistles. And in the nations of antiquity, where the democratic form of government ' would lead us to expect every species of personal security, ' nothing analogous to it existed.' A very curious and interesting fact is, however, brought to our notice in this essay, viz., the existence in Arragon, (of which Mr. Fry says, 'the ancient constitution was probably better adapted than any other in modern Europe, except our own, for the security of individual freedom,') of a process called manifestation, which is extremely similar to our writ of Habeas Corpus. It is described by Mr. Hallam, in his valuable work on the State of Europe during the Middle Ages,' (vol. ii., p. 75,) who says that 'It took place when any one was arrested
without lawful process; and in such cases only the justiciary of • Arragon, when recourse was had to him, interposed by manifest. ‘ing the person arrested; that is, by taking him into his own ' hands, out of the power of any judge,' in order that his case might be inquired into.
It appears that at the common law, as it is called, the principle of our constitution was clearly this : that no person could be imprisoned except by the express judgment of law, or that he was
* Introduct. p. 2, 3.
unable to procure pledges to answer for his appearance to a charge of felony. The assertion of this principle is familiar, probably, to most of our readers, as embodied in one of the famous clauses of Magna Charta ; and this provision was frequently reinforced and re-enacted by succeeding legislatures. Our great lawyers refer to this constant confirmation of Magna Charta, (which, we believe, took place more than forty times,) as a proof of the exceeding jealousy of parliament on this subject; but another inference equally obvious, which does not seem to have suggested itself to them with the same force, is, that this frequent repetition of the enactment shows its constant infraction, and how ineffectual the care of parliament was to restrain the violation of the charter by the power of the crown, in utter disregard of the royal oaths to maintain it. The opinions of our great legal writers, however, seem to have been uniform, and animated by this principle of our constitution, which, though distinctly asserted and claimed in those early times, has been really carried into effect only by gradual accessions of power in the people, which have restrained the arbitrary hand of the executive, and enabled the legislature to apply stringent and practical remedies for a breach of it. The Habeas Corpus act, as it is commonly called, viz., the statute 31 Car. 2, c. 3, was not, as imagined by a great number of the English people, an enactment securing personal liberty for the first time, but it only carried out and rendered more effectual the principles and provisions of the common law. Mr. Fry gives a summary account of the various writs which preceded the Habeas Corpus, in securing personal freedom; viz., that, De Odio et Atia, which enabled a person accused of murder to procure his discharge on bail, by showing that he was arrested by malice ; and the writ De Homine Replegiando, by which persons detained by any others on any pretence might procure their liberation. These writs, however, appear to have been tedious and circuitous, and comparatively ineffectual, being guarded and limited by many exceptions. Accordingly the prerogative writ, called the writ of Habeas Corpus, directed immediately to the person confining the party applying for it, and enforcing instant obedience by the terrors of attachment, became the usual remedy for all persons unjustly deprived of their liberty. When it first became of frequent occurrence, it is difficult to say. Mr. Fry's researches seem to point to the reign of Henry VI. as the epoch, although he adduces some curious cases which happened in the time of Edward III., where proceedings analogous to those of this writ were adopted by the Privy Council. We entirely concur with him, however, in his observation, that the research for a higher origin than the time of Henry VI. is unnecessary. The investigation may amuse antiquarians,-it cannot materially assist a
'constitutional lawyer, and is quite needless for the practical security of the liberty of the subjects of Great Britain."*
This writ appears to have been used in the early times of its existence to redress the wrongs between subject and subject; and not until a comparatively late period to have been employed as a legal instrument to resist the oppressions of the crown. At what period it was first brought into exercise for that vitally important object, it is doubtless not easy to ascertain. Mr. Hallam says, 'there is, I believe, no recorded instance of a Habeas Corpus 'granted in any case of illegal imprisonment, by the crown or its
officers, during the continuance of the Plantagenet dynasty ;' and Mr. Fry tells us the earliest precedents he can trace are to be found in the reign of Henry VII. Be that as it may, the value and efficacy of this great remedy against tyrannical conduct on the part of the crown was brought to the test in that epoch, to which every lover of liberty, civil and religious, no less than every historical student of his country, naturally turns as the period when all oppressive systems and usages of government were submitted to a searching scrutiny, and when so many of them were fortunately overturned for ever and a day. Our readers will at once anticipate us in referring to the reign of Charles I. In the third year of that monarch, he and his Privy Council committed Sir Thomas Darnell, I and other upright and independent gentlemen, to prison, for refusing to contribute to the general loan ! They sued out their writ of Habeas Corpus, to which of course the return was the order of commitment by the Privy Council. Noy and Selden argued the case on behalf of the prisoners, objecting that the warrant should have specified the cause for which they were detained in custody. But the honest and independent judges of that day, who supported Charles in his conduct on ship money, decided that it was quite sufficient for the Privy Council to issue their special command,' without the least reason assigned for its exercise ! The perusal of the State Trials of that period makes every freeman's blood boil, to see the monstrous degradation of the judges, and the overbearing tyranny and insolence of the crown. Talk of the rebellion being justifiable! They only can doubt it, who have either never read the trials of those days that immediately preceded it; or, if they have, are so dead to every feeling that should animate the heart of an Englishman, that even the tyranny of a Turkish basha would probably see them contented with their lot. The case of Sir Thomas Darnell, however, and his brave associates, produced that memorable statute, the Petition of Right, of which one of the provisions was
* Ib. p. 9.
+ Middle Ages, vol. ii. p. 72. # See the State Trials, vol. viii. p. 63.