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A History of England Principally in the Seventeent

Sir Robert Heath would not admit this interpretation


had now however retreated from this position. Abbot had obtained permission to resume his seat in the Upper House, and so had Lord Bristol. When, in consequence of the above-mentioned declaration in Parliament, a project was now decided on for securing the legal position of the subject, especially the rights of property and personal freedom, which had been infringed by the previous proceedings, the King expressed his agreement loudly, explicitly, and repeatedly; in general terms he gave up his claim ever to proceed again to a forced loan. No one was ever to be arrested again because he would not lend money; and in all other cases where arrest was necessary the customary forms were to be observed.

At this point however another question arose touching the very essence of the supreme power. The Lower House was not yet content that an abuse like that which had occurred should be merely removed: it wished to destroy it at the root. It was not satisfied with the promise of the King that he would never in any case punish by arrest, unless he was convinced in his conscience of its necessity. They wished to put an end to this discretionary power itself, of which his ministers could avail themselves at pleasure. Parliament demanded that henceforth no one should be arrested without assignment of the reason and observance of the forms of law.

This question led to a discussion of points of constitutional doctrine before

the House of Lords, between the representatives of the Lower House and Sir Robert Heath, the Attorney General, in an argument which deserves our whole attention.

The Lower House appealed to that article of Magna Charta, by which the arrest of free persons was forbidden except on the judgment of their peers, or according to the law of the land: and by the law of the land it understood the judicial process and its forms. Sir Robert Heath would not admit this interpretation. He thought that the expression in no way forbade the King to restrict the liberty of individuals in extraordinary cases for reasons of state; and that this restriction could not be avoided, when it was desired to trace out some conspiracy or treason. If the cause were to be assigned he thought that it must be the real cause, which could be proved before a tribunal; but how often cases arose of such a kind that arrest would have to be ordered under some other pretext, until the ring-leader could be laid hold of! It was very true, he said, that such a power might be seriously abused, but it was the same with all the rights of the prerogative: even the right of making war and peace, and the right of pardon might be abused, and yet no man wished to take these from the crown: it always was, and must always be presumed, that the King would not betray the confidence of God, who had placed him in his office.

Not without good reason did Edward Coke call this the greatest question which had ever been argued in Westminster. It was proved to him that he himself as judge had followed the interpretation which he now condemned. He answered that he was not pope, and made no pretensions to infallibility. He now firmly maintained that the King had no such prerogative at all.

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