gerous to the commonwealth, than ſuch as are made upon the perſonal liberty of the ſubject. 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 goal, where his ſufferings are unknown or forgotten, is a leſs public, a leſs ſtriking, and therefore a more dangerous engine of arbitrary government. And yet ſometimes, when the ſtate is in real danger, even this may be a neceſſary meaſure. But the happineſs of our conſtitution is, that it is not left to the executive power to determine when the danger of the ſtate is ſo great, as to render this meaſure expedient. For the parliament only, or legiſlative power, whenever it ſees proper, can authorize the crown, by ſuſpending the habeas corpus act for a ſhort and limited time, to impriſon ſuſpected perſons without giving any reaſon for ſo doing. As the ſenate of Rome was wont to have recourſe to a dictator, a magiſtrate of abſolute authority, when they judged the republic in any imminent danger. The decree of the ſenate, which uſually preceded the nomination of this magiſtrate, ”dent operam conſules, nequid reſpublica detrimenti capiat,” was called the ſenatus conſultum ultimae neceſſitatis. In like manner this experiment ought only to be tried in caſes of extreme emergency; and in theſe the nation parts with it’s liberty for a while, in order to preſerve it for ever.
The confinement of the perſon, in any wiſe, is an impriſonment. So that the keeping a man againſt his will in a private houſe, putting him in the ſtocks, arreſting or forcibly detaining him in the ſtreet, is an impriſonment[1]. And the law ſo much diſcourages unlawful confinement, that if a man is under dureſs of impriſonment, which we before explained to mean a compulſion by an illegal reſtraint of liberty, until he ſeals a bond or the like; he may allege this dureſs, and avoid the extorted bond. But if a man be lawfully impriſoned, and either to procure his
- ↑ 2 Inſt. 589.
