Page images

case, came on to be argued in the Court of Queen's Bench, precedents were cited showing the practice of the Secretary of State's office ever since the Revolution; but Lord Mansfield pronounced the warrant illegal, saying, “ It is not fit that the judging of the information should be left to the discretion of the officer. The magistrate should judge, and give certain directions to the officer.” The other three judges concurred, believing that “no degree of antiquity can give sanction to a usage bad in itself.” (3 Burr. 1742.) In the action brought by Entick, a writer in the Monitor, or British Freeholder, for seizing his books and papers under a general search warrant, the same question arose. The warrant specified the name of the person against whom it was directed, but gave a general authority to the messengers to take all his books and papers, without specifying what particular papers were to be seized. On a special verdict, the Court of Common Pleas held the warrant to be illegal, although it was found by the special verdict that many such warrants had been issued since the Revolution. Lord Camden considered that the practice had arisen in the Star Chamber, and that, having been revived and authorised by the Licensing Act of Charles II., in the person of the Secretary of State, it had been continued after the expiration of that Act. (Entick v. Carrington, 19 St. Tr. 1030.) Lord Mansfield and the Court of King's Bench shared in this conjecture. (Leach v. Money, 3 Burr. 1692, 1767.) Lord Camden, it may be mentioned, doubted the right of the Secretary of State to commit at all, except for high treason; but the Court, from deference to prior decisions, felt bound to acknowledge the right.

From the Revolution to the rebellion of 1745, the Habeas Corpus Act had been frequently suspended. But although, during the American war, the king had been empowered to secure persons suspected of high treason committed in North America, or on the high seas, or of the crime of piracy, no attempt had been made to suspend the civil liberties of Englishmen at home, for nearly fifty years after the invasion of the realm by Charles Edward. In 1794, however, Mr. Pitt moved for a bill to empower bis Majesty to secure and detain persons suspected of conspiring against his person and government, justifying the measure on the ground, that whatever the temporary danger of placing such power in the hands of the government, it was far less than the danger with which the constitution and society were threatened. Fox, Grey, and Sheridan, strongly opposed the bill, and denied that any such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom. The measure, however, passed, and was continued till the end of 1801.

Though termed,” says Mr. May, “a suspension of the Habeas Corpus Act, it was, in truth, a supension of Magna Charta, and of the cardinal principles of the common law. Every man had hitherto been free from imprisonment until charged with crime by information upon oath, and entitled to a speedy trial, and the judgment of his

peers. But any subject could now be arrested on suspicion of guilt ; his accusers were unknown, and in vain might he demand public accusation and trial. Spies and treacherous accomplices, however circumstantial in their narratives to Secretaries of State, shrank from the witness-box, and their victims rotted in gaol. Whatever the judgment, temper, and good faith of the executive, such a power was arbitrary, and could scarcely fail to be abused. Whatever the danger by which it was justified, never did the subject so much need the protection of the laws, as when government and society were filled with suspicion and alarm."— Vol. II.

pp. 265-6.

Great discussion took place before the Act had expired, on the bill to indemnify all persons who, since the 1st February, 1793, had acted in the apprehension of persons suspected of high treason. The bill was strongly opposed, but was justified on the ground that it would be impossible for accused of abuses to defend themselves, without disclosing secrets dangerous to the lives of individuals and to the State. There is, no doubt, much force in this justification of the bill of indemnity, though we cannot but agree with Mr. May, that


“it were better to withhold such powers, than to scrutinize their exercise too curiously ;” and that, “ were any argument needed against the suspension of the law, it would be found in the reasons urged for indemnity.” After the suspension of the Habeas Corpus Act, in 1817, a similar bill of indemnity was brought forward by ministers, and passed after strenuous opposition. The discussions, however, which arose, disclosed the great evils arising from suspending fundamental laws; and since then the Habeas Corpus Act has not been interfered with in England.

In the chapters on the Church and Religious Liberty we have a full account of all those memorable struggles so long maintained by the church against the claims of Dissenters and Roman Catholics to political equality. The granting of these claims and the reform of abuses within the church herself, have removed the grounds of much jealousy and ill-will; her position as a National Church has been by no means compromised by such concessions; and if her clergy are only willing, as to a great extent they are, to keep pace with the advancing enlightenment of the age, she has the opportunity of enjoying a much wider popularity, and doing a much larger amount of good than at any former period of her history. But one essential condition of her permanence and success as a National Church at the present day is, that she should retain and still further increase her power of comprehending men of various opinions and modes of thought.

“ The fold of the church,” says Mr. May, “ has been found wide enough to embrace many diversities of doctrine and ceremony. The convictions, doubts, and predelictions of the 16th century still prevail, with many of later growth ; but enlightened Churchmen, without absolute identity of opinion, have been proud to acknowledge the same religious communion—just as citizens, divided into political parties, are yet loyal and patriotic members of the State. Aud if the founders of the reformed church erred in prescribing too straight a uniformity, the wisest of her rulers, in an age of active thought and free discussion, have generally shown a liberal and

cautious spirit in dealing with theological controversies. The ecclesiastical courts have also given breadth to her Articles and Liturgy. Never was comprehension more politic. The time has come when any serious schism might bring ruin on the church."Vol. II. p. 445.

The remaining part of the volume is devoted to a variety of subjects of much interest. In that which treats of the progress of general legislation, and which concludes the work, will be found a reference to the various measures of legal and financial reform, and others bearing on the social welfare of the community, which have been adopted in recent times. The observations of the author are very just and valuable, but the extent and variety of the subjects prevent him doing more than merely touching upon them. With respect to one important topic alluded to, viz., the improved spirit and temper of the judges, Mr. May has truly stated that the measure, passed at the suggestion of George III., which provided that the commissions of the judges should not expire with the demise of the crown, although entitled to approval and respect, did not prevent them being leagued closely with the crown.

“But no sooner had principles of freedom and responsible government gained ascendency, than judges were animated by independence and liberality. Henceforward they administered justice in the spirit of Lord Camden, and promoted the amendment of the laws with the enlightenment of statesmen.”—Vol. II. p. 595.

We have already stated the high estimate we have formed of Mr. May's work, and we desire again to express, before concluding, our sense of the full and accurate information which it conveys, of the sound and judicious views which are put forward, and of the admirable spirit in which the whole is conceived and executed. In our notice of the former volume, we stated our approval of the plan adopted by the author of deviating from the chronological narrative, and treating the subject under certain leading heads. We still adhere to the

view then expressed; but, in reading the second volume, we confess we have occasionally experienced doubts as to whether this method has not somewhat impaired the interest of the book on continuous perusal, and we have heard similar feelings expressed by others. But be that as it may, there can be no doubt that the plan adopted is by far the most convenient for purposes of reference. Thus, the whole information connected

, with the revenues of the crown, the civil list, and pensions, is to be found under one chapter, and the different cases of suspension of the Habeas Corpus Act are brought together in the chapter on the Liberty of the Subject. We give these

. only as instances, for the same advantage arises from the mode in which all the various topics which fall within the purview of the work are treated. Not only is much inconvenience avoided by this method, but each particular subject is more fully presented and more thoroughly discussed than would be possible, without much prolixity and repetition, in a chronological narrative.



A VALUABLE suggestion has recently been made by the

Judge of the Court of Probate, upon the subject of the hæreditates jacentes of foreigners dying in England without relatives near them, in cases where the 24 & 25 Vict. c. 121, $ 4, does not apply.

In a country like ours, to which the stranger resorts not for pleasure but for profit, not to spend but to make money, it must frequently happen that when he dies here he dies with more or less of property in his actual possession.

At most times, also, this foreigner dies indebted to some persons in England, and at all times he requires burial. As

« PreviousContinue »