colonel shall be a natural-born subject, does not really contain that security which it affects to give against the command of the regiment devolving upon a foreigner, as there may be fifty foreign officers employed in the regiment, whose commissions are not otherwise restrained to any rank; and upon the absence of the colonel, who is a general officer, or in case of his death, if the eldest of the four colonel-commandants should be a foreigner, the command of the regiment must devolve upon an alien, against which the Bill does not provide, though the title of colonel of the regiment is indeed withheld from him; which consideration has the more weight with us, as it may happen that, at the time when the command shall so devolve upon the foreign officer, the four colonel-commandants, all the field-officers, and all the captains in the four battalions, may be foreign also; and in that event not only the present and future defence, but the civil liberties of North America, will be entrusted to a body of soldiers (perhaps aliens also) commanded by officers neither American nor British. And it is very remarkable, that this regiment, intended for the immediate relief of our colonies in their present imminent danger, cannot possibly be raised early enough to act this campaign; although it hath been preferred, ineffectual and disgustful as it is, to every other sort of military force; notwithstanding it is obvious too, that out of great numbers of officers, natural-born British subjects, at this time in the service of our Protestant allies, and out of American officers who have served with reputation in all our late expeditions in those parts, a force might have been raised and officered without any change in our Constitution, and with the entire satisfaction of America.

5thly, Because the Bill founded upon an expediency, which is not alleged to be more than temporary, and which from its nature cannot be otherwise, is in its frame and duration perpetual; by which not only the remedy, odious in itself, is extended, without necessity, beyond the pretended occasion for it, but a pretext is found for a perpetual repeal of one of the most essential parts, still left subsisting of the original Act of Settlement in a case, and in an age, when every sober and thinking man would feel a reluctance in suspending it, even upon the strongest proof of necessity, for the conjuncture only; more particularly as the same disposition and turn of policy which, upon the pretence of a temporary ex

pediency, has fixed upon America this perpetual law, may in a future time, at some season advantageous to the design, upon a similar expediency contrived and not suffered to be examined, contend for, and carry a Bill of the same sort for Great Britain : and if this should happen, which God avert, the sword of both countries will be lodged in foreign hands, to the entire overthrow of the present Constitution, and to the subversion of the liberties of Great Britain.

For these reasons we are of opinion, that if we had given our assent to this Bill, which is a manifest departure from a sacred provision in the Act of Settlement, contemporary with the most solemn confirmation of our civil liberties, and enacted as the firmest barrier for the preservation of that great work, we should have been unmindful of our duty as Peers of this realm, careless of our rights as British subjects, and wanting to the security of our posterity; persuaded as we are, that when the tendency, novelty, and danger of this measure shall be thoroughly known and considered in America, the force proposed will probably never be raised; and convinced that if it should be raised, it ought not to be trusted, that it may not only excite and spread a deep and universal disgust and apprehension in the minds of his Majesty's most loyal and deserving American subjects, but even deprive us of the exertion of all the natural strength of America, where such eminent services have very lately been voluntarily performed by several of the North American colonies, thereby rendering the war in those parts, which, conducted with common prudence, and timely precaution, might have had a speedy and honourable issue, extremely dilatory, impracticable, and ruinous, bringing upon our arms disappointment, and upon our counsels disgrace.

Richard Grenville, Earl Temple.
William Talbot, Lord Talbot.

CCCXXXVII.

MAY 30, 1758.

At some time during the autumn of 1757, a gentleman was pressed, and confined in the Savoy. His friends applied for a Habeas Corpus. A difficulty however arose as to whether the Habeas Corpus Act, 31 Charles II, cap. 2, applied to any other than criminal cases, and also whether the Act did not also preclude the grant of the writ at common

law. In this particular case, the gentleman was discharged by warrant of the Secretary at War. But when Parliament met, it appeared that the Act of Charles II was defective, and consequently a Bill was brought into the House of Commons on the 8th of March, 1758, was passed on the 24th of April, and was forthwith sent to the Lords. While it was in the Upper House, the Lords put a series of questions to the judges, answers to which were delivered on the 30th of May. On this being done (the judges having generally declared that the Act of Charles II was insufficient to meet many cases of great hardship), it was moved that they should be asked the following question: Whether, if a writ of Habeas Corpus ad subjiciendum at the common law be applied for, either in term or vacation time, by the friend or agent, and on the behalf of any person under actual confinement or restraint; and if the person, so applying, should make an affidavit of such confinement or restraint, and that he believes the same not to be by virtue of a commitment for criminal or supposed criminal matter, but should declare that he could give no other material information relative thereunto, would such an affidavit, as the law now stands, be a proper probable cause for the awarding of the said writ of Habeas Corpus, and would the court or judge be bound immediately to award the same, as a writ of right, or would the court or judge be bound to refuse the same upon such affidavit only, or is it in such case entirely left to the discretion of the court or judge to grant the said writ of Habeas Corpus to one person upon such affidavit, if they shall so think fit.' The motion was negatived and the following protest entered.

Ist, Because the case stated in this question tends to ascertain the nature, degree, and extent of that dangerous discretion now contended for in awarding writs of Habeas Corpus ad subjiciendum, to which discretion no bounds by the terms of the opinions delivered by the judges are as yet set. And this matter is not stated in any other of the said questions proposed to them; nor doth it appear, by any of their answers, whether this precise case, exactly the same as that required by the Bill under deliberation be or be not, in their opinion as the law now stands, a proper probable cause for the awarding of the writ aforesaid.

2ndly, Because one of the principal reasons urged in the debate for not allowing this question to be proposed to the judges, was, that the asking it implied an imputation upon them, by supposing they would grant it to one person, and refuse it to another on the same case, whereas the question is not whether they would, but whether by law they could exercise such a discretion; and it is of importance to ascertain, whether, in their opinion, the character and credibility of the person applying upon oath for the writ, can and ought to determine the judge in the exercise of that discretion.

3rdly, Because there is great reason to believe, that if this question had been suffered to be put, it might have appeared that an actual confinement or restraint, verified in the manner stated in the question and Bill, is by the law, as it now stands, a sufficient cause for the granting the said writ, and, consequently, that the provisions in this Bill to enforce the awarding it, and a speedy obedience in the return thereto, are agreeable to the fundamental principles of law and justice, and essentially necessary to the freedom of the subject.

Richard Grenville, Earl Temple (Lord Privy Seal).

CCCXXXVIII.

JUNE 2, 1758.

The Bill referred to in the previous protest may be found in Parliamentary History, vol. xv, p. 871. On the 2nd of June a motion was made that the Bill be committed, but the motion was negatived, and the Bill was rejected. Lord Hardwicke at the same time promised to bring in a Bill giving additional powers to the judges for the issue of writs of Habeas Corpus. The promise was not redeemed. It is said that the annexed protest would have been numerously signed had it not been for Lord Hardwicke's pledge.

Ist, Because, until some effectual and speedy remedy be provided, by a new law, for the awarding and returning writs of Habeas Corpus ad subjiciendum in cases not within the statute of the 31 Car. II, the subject may, in many instances, be oppressed and deprived of his liberty, without the possibility of redress, that remedy which our ancestors have wisely provided and enforced by the statute for the immediate relief of the guilty, being denied to the innocent.

2ndly, Because the subject is left under the most perplexing and grievous uncertainties, of various kinds, which appear from the contradictory opinions and reasons delivered by the judges, in answer to some of the questions stated to them; all which reasons, whereupon their answers were founded, they did unanimously desire leave to decline giving in writing to the House, whereby it would have appeared that some of the judges conceived that the practice of awarding writs of Habeas Corpus in vacation time, was founded upon ancient precedents, and principles of law, without which support it was held, that no practice of judges, within time of memory, was powerful enough to establish a law, while others, denying any such principle and law to have ever existed, and not

admitting the force of such precedents, maintained such practice, since the statute was sufficient to give that usage the stamp of law. Others, again, contended strongly, that neither the one nor the other opinion could be supported, but that the practice was well justified by an equitable construction of the statute; which was opposed by others, who thought that such practice might well be introduced upon the plan of the statute by analogy; from all which variety of notions, not only the legality of this practice, but the unanimity of opinion which regularly ought to result from uniformity of principles, may well be questioned, since the same conclusion cannot fairly or safely be deduced from clashing and discordant premises.

3rdly, Because it is now become of indispensable necessity, to define with precision what shall be deemed a probable cause, under which the judges, at all times, shall be bound to issue the writs aforesaid, that they may not in bad times, under words of so alarming a latitude, assume an arbitrary discretion, destructive of the personal liberty of the subject, in manifest violation of the ancient known common law of the land, confirmed by Magna Charta, and declared by the strongest, clearest, and most unanimous resolutions of both Houses of Parliament (hereby referred to) made, in different ages, upon two solemn occasions, with the assistance of the ablest and most eminent lawyers and statesmen, and because the general doctrines and opinions laid down in the course of this debate, that neither a judge, nor the court, are bound to grant this great remedial writ to the subject, upon proof of actual confinement, verified by affidavit, are not supported by any single determination of any one court of justice, and are directly repugnant to the reason and genius of the law of this free country.

Commons' Journal, April 3, 1628.

'Resolved upon question, that the writ of Habeas Corpus may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained, though it be by the command of the King, the Privy Council, or any other, he praying the same without one negative.'

Lords' Journal, April 9, 1628.

Mr. Selden, who was manager with Sir Dudley Digges, Mr. Lyttelton, and Sir Edward Coke, speaking in the name of the