This provision of the English law has been wisely retained in our system, for without some such regulation, it would be almost as easy to detain a citizen unjustly, under a popular government, as to detain the subject of a monarchy; the difference in favor of the first, consisting only in the greater responsibility of its functionaries.
By comparing the privileges of the Habeas Corpus, where it exists alone, and as a franchise, with those of the citizen who enjoys it merely as a provision of his own, against the abuses of ordinances that he had a voice in framing, we learn the essential difference between real liberty and franchises. The Englishman can appeal to a tribunal, against the abuse of an existing law, but if the law be not with him, he has no power to evade it, however unjust, or oppressive. The American has the same appeal against the abuse of a law, with the additional power to vote for its repeal, should the law itself be vicious. The one profits by a franchise to liberate his person only, submitting to his imprisonment however, if legality has been respected; while the other, in addition to this privilege, has a voice in getting rid of the obnoxious law, itself, and in preventing a recurrence of the wrong.
Some countries have the profession of possessing a government of the people, because an ancient dynasty has been set aside in a revolution, and a new one seated on the throne, either directly by the people, or by a combination that has been made to assume the character of a popular decision. Admitting that a people actually had an agency in framing such a system, and in naming their ruler, they cannot claim to be free, since they have parted with the power they did actually possess. No proposition can be clearer than that he who has given away a thing is no longer its master.
