fter the
passing of this statute, as several subsequent petitions that it might
be better regarded will evince. One, as it contains a special instance,
I shall insert. It is of the fifth year of Henry IV.: "On several
supplications and petitions made by the commons in parliament to our
lord the king for Bennet Wilman, who is accused by certain of his
ill-wishers and detained in prison, and put to answer before the
constable and marshal, against the statutes and the common law of
England, our said lord the king, by the advice and assent of the lords
in parliament, granted that the said Bennet should be treated according
to the statutes and common law of England, notwithstanding any
commission to the contrary, or accusation against him made before the
constable and marshal." And a writ was sent to the justices of the
King's Bench with a copy of this article from the roll of parliament,
directing them to proceed as they shall see fit according to the laws
and customs of England.[369]

It must appear remarkable that, in a case so manifestly within their
competence, the court of King's Bench should not have issued a writ of
habeas corpus, without waiting for what may be considered as a
particular act of parliament. But it is a natural effect of an arbitrary
administration of government to intimidate courts of justice.[370] A
negative argument, founded upon the want of legal precedent, is
certainly not conclusive when it relates to a distant period, of which
all the precedents have not been noted; yet it must strike us that in
the learned and zealous arguments of Sir Robert Cotton, Mr. Selden, and
others, against arbitrary imprisonment, in the great case of the habeas
corpus, though the statute law is full of authorities in their favour,
we find no instance adduced earlier than the reign of Henry VII., where
the King's Bench has released, or even bailed, persons committed by the
council or the constable, though it is unquestionable that such
committals were both frequent and illegal.[371]

If I have faithfully represented thus far the history of our
constitution, its essential character will appear to be a monarchy
greatly limited by law, though retaining much power that was ill
calculated to promote the public good, and swerving continually into an
irregular course, which there was no restraint adequate to correct. But
of all the notions that have been advanced as to the theory of this
constitution, the least consonant to