vided against this danger with extreme folicitude. The ancient writ of habeas corpus, the habeas corpus act of Charles the Second, and the practice and determinations of our fovereign courts of juftice founded upon thefe laws, afford a complete remedy for every conceivable case of illegal imprisonment. *

Treafon

* Upon complaint in writing by, or on behalf of any perfon in confinement, to any of the four courts of Westminster Hall, in term time, or to the Lord Chancellor, or one of the Judges, in the vacation; and upon a probable reason being fuggefted to question the legality of the detention, a writ is iffued, to the person in whofe cuftody the complainant is alleged to be, commanding him within a certain limited and short time to produce the body of the prifoner, and the authority under which he is detained. Upon the return of the writ, ftrict and inftantaneous obedience to which is enforced by very fevere penalties, if no lawful cause of imprifonment appear, the court or judge, before whom the prisoner is brought, is authorized and bound to discharge him; even though he may have been committed by a fecretary, or other high officer of state, by the privy council, or by the King in perfon: fo that no subject of this realm can be held in confinement, by any power, or under any pretence whatever, provided he can find means to convey his complaint to one of the four courts of Westminster Hall, or, during their recess, to any of the Judges of the fame, unless all these several tribunals agree in determining his imprisonment to be legal. He may make application to them, in fucceffion; and if one

out

Treafon being that charge, under colour of which the deftruction of an obnoxious individual is often fought; and government being at all times more immediately a party in the prosecution; the law, befide the general care with which it watches over the fafety of the accufed, in this cafe, fenfible of the unequal contest in which the subject is engaged, has affifted his defence with extraordinary indulgencies. By two ftatutes, enacted fince the revolution, every perfon indicted for high treafon shall have a of his indictment, a lift of the witnesses to be produced, and of the jury impannelled, delivered to him ten days before the trial; he is also permitted to make his defence by counfel-privileges which are not allowed to the prisoner, in a trial for any other crime: and what is of more importance to the party than all the rest, the testimony of two witneffes, at the least, is required to convict a person of treason ; whereas, one pofitive witness is fufficient in almoft every other species of accufation.

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We proceed, in the fecond place, to inquire in what manner the conftitution has provided for

its

out of the number be found, who thinks the prisoner entitled to his liberty, that one poffeffes authority to restore it to him.

its own prefervation; that is, in what manner each part of the legiflature is fecured in the exercife of the powers affigned to it, from the encroachment of the other parts. This fecurity is fometimes called the balance of the conftitution; and the political equilibrium, which this phrase denotes, confifts in two contrivances,- a balance of power, and a balance of interest. By a balance of power is meant, that there is no power poffeffed by one part of the legiflature, the abuse, or excess of which is not checked by fome antagonist power, refiding in another part. Thus the power of the two houfes of parliament to frame laws is checked by the king's negative; that if laws fubverfive of regal government fhould obtain the confent of parliament, the reigning prince, by interpofing his prerogative, may fave the neceffary rights and authority of his ftation. On the other hand, the arbitrary application of this negative is checked by the privilege which parliament poffeffes, of refusing fupplies of money to the exigencies of the King's administration. The conftitutional maxim, " that "the king can do no wrong," is balanced by another maxim, not lefs constitutional, "that "the illegal commands of the king do not justify "thofe who affift, or concur, in carrying them

"into execution;" and by a fecond rule, subfidiary to this, "that the acts of the crown acquire not any legal force, until authenticated "by the fubfcription of fome of its great officers." The wisdom of this contrivance is worthy of obfervation. As the King could not be punished, without a civil war, the conftitution exempts his perfon from trial or account; but, left this impunity should encourage a licentious exercise of dominion, various obftacles are opposed to the private will of the fovereign, when directed to illegal objects. The pleasure of the crown muft be announced with certain folemnities, and attefted by certain officers of ftate. In fome cafes, the royal order muft be fignified by a fecretary of ftate; in others, it muft pafs under the privy feal, and in many, under the great feal. And when the king's command is regularly published, no mischief can be achieved by it, without the miniftry and compliance of those to whom it is directed. Now all who either concur in an illegal order, by authenticating its publication with their seal or subscription, or who in any manner afsist in carrying it into execution, subject themfelves to profecution and punishment, for the part they have taken; and are not permitted to plead or produce the command of the king, in · justifi

VOL. II:

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juftification of their obedience.* But farther ; the power of the crown to direct the military force of the kingdom, is balanced by the annual neceffity of reforting to parliament for the maintenance and government of that force. The power of the king to declare war, is checked by the privilege of the house of commons, to grant or withhold the supplies by which the war muft be carried on. The king's choice of his minifters is controlled by the obligation he is under of appointing thofe men to offices in the ftate, who are found capable of managing the affairs of his government, with the two houses of parliament. Which confideration impofes fuch a neceffity upon the crown, as hath in a great measure fub

Amongst the checks, which parliament holds over the administration of public affairs, I forbear to mention the practice of addreffing the King, to know by whose advice he refolved upon a particular measure, and of punishing the authors of that advice, for the counsel they had given. Not becaufe I think this method either unconftitutional or improper, but for this reason, that it does not so much subject the king to the control of parliament, as it fuppofes him to be already in subjection. For if the king were fo far out of the reach of the refentment of the house of commons, as to be able, with fafety, to refufe the information requested, or to take upon himself the refponfibility inquired after, there must be an end of all proceedings founded in this mode of application.

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