other countries in a very honourable manner, is, that as the torture is unkown to them, so neither do they know any more grievous punishment than the simple deprivation of life.

All these circumstances have combined to introduce such a mildness into the exercise of criminal justice, that the trial by jury is that point of their liberty to which the people of England are most thoroughly and universally wedded; and the only complaint I have ever heard uttered against it, has been by men who, more sensible of the necessity of public order, than alive to the feelings of humanity, think that too many offenders escape with impunity.

CHAPTER XIV.

THE SUBJECT CONTINUEd.

SECTION I.-Laws relative to Imprisonment.

BUT what completes that sense of independence which 188 the laws of England procure to every individual (a sense which is the noblest advantage attending liberty), is the greatness of their precautions upon the delicate point of imprisonment.

In the first place, by allowing, in most cases, enlargement upon bail, and by prescribing, on that article, express rules for the judges to follow, they have removed all pretexts, which circumstances might afford, for depriving a man of his liberty.

But it is against the executive power that the legislature has, above all, directed its efforts: nor has it been but by slow degrees that it has been able to wrest from it a branch of power which enabled it to deprive the people of their leaders, as well as to intimidate those who might be tempted to assume the function; 189 and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty.

The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprize, de odio et atia,

and de homine replegiando. Those writs, which could not be denied, were an order to the sheriff of the county in which a person was confined, to inquire into the causes of his confinement; and, according to the circumstances of his case, either to discharge him completely, or upon bail.

But the most useful method, and which, even by being most general and certain, has tacitly abolished all the others, is the writ of Habeas Corpus, so called, because it begins with the words Habeas Corpus ad subjiciendum. This writ being a writ of high prerogative, must issue from the Court of King's Bench: its effects extend equally to every county; and the king by it requires, or is understood to require, the person who holds one of his subjects in custody, to carry him before 190 the judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain him, according as the judge shall decree.

But this writ, which might be a resource in cases of violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all against the prerogative of the prince, especially under the sway of the Tudors, and in the beginning of that of the Stuarts. And even in the first

of the King's Bench,

years of Charles I. the judges
who, in consequence of the spirit of the times, and of
their holding their places durante bene placito, were
constantly devoted to the court, declared, "that they
could not, upon a Habeas Corpus, either bail or deliver
a prisoner, though committed without any cause assign-
ed, in case he was committed by the special command
of the king, or by the lords of the privy council."

Those principles, and the mode of procedure which resulted from them, drew the attention of parliament;

and in the bill called the Petition of Right, passed in the third year of the reign of Charles I. it was enacted, that no person should be kept in custody, in conse- 191 quence of such imprisonments.

But the judges knew how to evade the intention of this act they indeed did not refuse to discharge a man imprisoned without a cause; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of justice.

The legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles I., the same in which the Star-chamber was suppressed, it was enacted, that "if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without delay, upon any pretence whatsoever, a writ of Habeas Corpus; and that the judge shall thereupon, within three court-days after the return is made, examine and determine the legality of such imprisonment."

This act seemed to preclude every possibility of future evasion: yet it was evaded still; and, by the connivance of the judges, the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him.

All these different artifices gave at length. birth 192 to the famous act of Habeas Corpus, which is considered in England as a second great charter, and has extinguished all the resources of oppression (a).

(a) 31 Car. II. c. 2, intituled "An Act for better securing the liberty of the subject, and for prevention of imprisonment beyond the

The principal articles of this act are,

1. To fix the different terms allowed for bringing a prisoner: those terms are proportioned to the distance; and none can in any case exceed twenty days.

2. That the officer and keeper neglecting to make due returns (1), or not delivering to the prisoner, or his agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in the act); shall for the first offence forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office.

193 3. No person, once delivered by Habeas Corpus, shall be re-committed for the same offence, on penalty of five hundred pounds.

4. Every person committed for treason or felony shall, if he require it, in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be produced at that time: and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence.

5. Any of the twelve judges, or the lord-chancellor, who shall deny a writ of Habeas Corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party aggrieved 5007.

6. No inhabitant of England (except persons contracting, or convicts praying to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey,

(1) If an equivocal return be made, an attachment may be had immediately. (5 Term Rep. 89.-EDITOR.)