Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/215

§ 1334. Mr. Justice Blackstone has remarked with great force, that

to bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary force.^[1]

While the justice of the remark must be felt by all, let it be remembered, that the right to pass bills of attainder in the British parliament still enables that body to exercise the summary and awful power of taking a man's life, and confiscating his estate, without accusation or trial. The learned commentator, however, has slid over this subject with surprising delicacy.^[2]
§ 1335. In England this is a high prerogative writ, issuing out of the Court of King's Bench, not only in term time, but in vacation, and running into all parts of the king's dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained. It is grantable, however, as a matter of right, ex merito justitiæ, upon the application of the subject.^[3] In England, however, the benefit of it was often eluded prior to the reign of Charles the Second; and especially during the reign of Charles the First. These pitiful evasions gave rise to the famous Habeas Corpus Act of 31 Car. 2, c. 2, which has been frequently considered, as another magna charta in that kingdom; and has reduced the

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1. 1 Black. Comm. 136.
2. 4 Black. Comm. 259.
3. 4 Inst. 290; 1 Kent's Comm. Lect. 24, p. 22, (p. 26 to 32;) 3 Black. Comm. 133.