law, but it was a precept without a sanction, and therefore totally inefficient until the statute passed in the 31st year of Charles II. gave it force and efficacy, and made it a feature in their jurisprudence, of which any nation might be proud, and which all ought to imitate or adopt. The mechanism of this admirable contrivance for securing personal liberty is so simple, its effects are so decisive, that we are led to wonder why it was not sooner put in operation, especially in a nation which at so early a period made it a stipulation with their king, that "no freeman should be imprisoned but by the law of the land." Indeed the writ itself was known in the Roman law by the name of the interdict de homine libero exhibendo; but it was applicable only to the case of a freeman claimed as a slave; and we do not find that even in that case there were any provisions to enforce its execution on the contrary, there was one which permitted any person to refuse obedience, who chose rather to pay for the man, estimating his value as if he was a slave. In no stage of its history, therefore, was this writ of any importance until the spirit of liberty, nearly extinguished under the energetic despotism of the Tudors, rose superior to the weakness of the Stuarts, and inspired the declaration of those principles of personal and political rights, on which our republics are chiefly founded. One of the most important measures which this spirit suggested, was the habeas corpus act; it directs the manner in which the writ is to issue; imposes penalties for disobedience to it, and makes a number of salutary provisions to prevent delays and abuses in criminal proceedings. In all the Atlantic states, this statute was a part of the law by which they were governed at the time they became independent; and it was either expressly or impliedly adopted with the whole body of their municipal laws. In those states, therefore, nothing more was necessary than to guard against its suspension by a constitutional clause. But here the case was different, the common law of England was not in force here, still less were its statutes. Neither could form part of our law, unless specially re-enacted. Yet the framers of our constitution, not attending to this difference, contented themselves with transcribing from the constitutions of other states, the provision that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." But no law had before, or has been since passed, defining what the writ of habeas corpus was, or directing the manner in which it was to be obtained, how it was to be executed, what was to be its effect, or what the penalty of disobeying it. If the writ alone be introduced without the provisions for enforcing it, it could be of as little use here as it was in England before the statute of Charles II.; if the statute be introduced, do we stop at that of Charles? or are those of 16 George I. and 38 of George III. re-enacted by this laconic legislation? If either of them are, they involve, as applied to us, great absurdities for they contain many provisions which are purely local, all of them referring to courts and to magistrates which do not exist under our laws; and impose penalties which are not recoverable here; and yet on which the whole efficacy of the act depends. So that whatever construction we put on this clause in our constitution, it must be confessed, that without some statute to define and enforce the great privilege of which it declares we shall not be deprived, the provision can be of little use. Hitherto the necessity for this remedy has

been so strongly felt, that judges have not scrupulously examined their right to afford it; and even when improperly granted, so strongly is it supported by public opinion, that parties, though they have sometimes evaded its operation, have never thought proper to question its legality. It has held its authority, therefore, by the moral sense of the people, exerting its influence in support of an institution which they have been taught from their infancy to venerate and admire, rather than by the constraint of law. But times may come; in the natural progress of human affairs must come; when public opinion will have less force, and without the aid of law for its support, will prove a feeble barrier against encroachment.

The offences against personal liberty, which are most dangerous, are those that are committed for political purposes, and as the means of silencing opposition to unconstitutional and revolutionary measures. All the energies of the law, armed with its strongest sanctions, and directed by the most efficient measures to secure its execution then become necessary. The magnitude of the evil, therefore, concurring with the probability of its occurrence, calls for the attention of the legislature to this important subject. In examining the different enactments of this justly celebrated statute, every friend of freedom must be grateful to its authors for the extensive, and it is devoutly to be hoped, the lasting benefit they have conferred on mankind. Ten millions of freemen have already consecrated it among their fundamental rights, and the rising republics of the new world will not fail to adopt so precious an institution, when they review and finally establish their constitutional compacts.

This is the greatest glory a wise nation can desire; to see its principles recognized; its institutions adopted; its laws copied, not only by men speaking the same language, and bred in a similarity of manners, but translated into different languages, adapting themselves to different habits; incorporated in different codes, and in all, acknowledged as the first of blessings. And the trial of a cause, by an independent jury, on the banks of the La Plata or the Oroonook; or the writ of habeas corpus adopted by a representative assembly in Mexico and Peru, ought to afford more satisfaction to an Englishman, who loves the honour of his country, than the most splendid triumph of her arms. We must not, however, suffer our admiration of any institution to blind us to its faults or prevent us, when we are about to adopt it, from scrutinizing severely all its provisions, and carefully inquiring whether in its operation, defects have not been discovered, which a prudent attention might amend. In examining the English statute with this view, some important omissions have been observed; and in the project presented to you, an attempt has been made to remedy them. Some of the most important ought to be enumerated.

i. The great object of this writ; that, which constitutes its chief excellence, I may say its only use, is the promptitude and efficacy with which it acts. To borrow a phrase from another branch of jurisprudence, it is a writ for "specific performance," or it is nothing. In all civilized countries, there are actions given for injuries to personal liberty but no nation, until England set the example, provided any means for the immediate cessation of the evil. This law enforces it by attachment, fines and penalties; in most cases, these are effectual: but there are circumstances in which the party injured would obtain no re

lief, and the offender would escape punishment, notwithstanding the provisions of the statute. A person may be unlawfully arrested, and forcibly embarked, to be conveyed out of the country; the writ of habeas corpus may issue; it may even be served in time, but if the party to whom it is directed choose to make an insufficient return, no other process can issue until that return has been received, debated, and determined to be insufficient; and then, it is not a compulsory process, but a penal one, which is awarded; not giving liberty to the prisoner, but punishing the party for his disobedience, who detains him; in the mean time the sufferer may be conveyed out of the kingdom, or some other irreparable injury may be inflicted on him. This is a case which must probably have often occurred in England, by abuses under their press-warrants; by military encroachments, and for purposes of private vengeance or public oppression. Recent as has been the establishment of our government, an outrageous and wellknown example of this abuse took place here; an evasive return was made and repeated, and while the court was occupied in determining its validity, a number of citizens were carried out of the state by a military officer, on a groundless charge of political crimes.

To prevent the occurrence of an evil of this kind, an article has been inserted, directing, whenever a case is made out to justify the issuing of this writ, accompanied by proof, that deportation, or any other irremediable injury is apprehended; or whenever the writ is disobeyed, that the magistrate shall, instead of the habeas corpus, issue his warrant to bring the prisoner, and the party in whose custody he is held, before him, that the one may be released and the other committed for trial, in all cases in which those steps may be required by law.

2. Under the English law, the return is taken for true, and the only remedy is an action against the person who makes a false return; a doctrine utterly subversive of the true intent of the act, and which, in many cases, has rendered it nugatory. This doctrine was established on a reference to the twelve judges, by the house of lords, in 1757, and was enforced in the case of American seaman impressed on board of English vessels; the captain returned, that they had voluntarily enlisted, and without any other evidence, they were remanded to their slavery, and told, that if they survived the war, and could find any one to bring an action for a false return, on proving it, they might obtain relief. This glaring defect is removed by the law presented to you; and the mode is prescribed for examining into the truth of a return. when it is controverted.

3. The judges in the case alluded to, determined unanimously, that the provisions made for awarding and returning writs of habeas corpus immediately, do not extend to any case but those of a criminal or supposed criminal nature. Mr Justice Bathurst, it is true, adds to his opinion, that although the statute did not extend to other cases, yet the justices of the king's bench had, in favour of liberty, extended the same relief to all cases.

To give full effect to this remedy, it is proposed expressly to extend it to every case of illegal imprisonment and restraint.

4. By the English practice, when a prisoner is brought up on habeas corpus, if the commitment be informal, he is discharged, although sufficient evidence may exist to justify his detention for trial. The plan proposes a remedy for this evil, by obliging the officer who brings up

the prisoner, to produce the evidence on which he was committed, and directing the judge before whom the writ is returned, to re-commit him if the evidence warrant it.

As the whole of this chapter is submitted, it is not necessary to notice any other of the omissions which have been supplied, or the defects which it has been attempted to remedy. A strong impression of the utility of this great writ, has rendered me particularly desirous to increase the facility of procuring it; to enlarge the sphere of its relief; to give an adequate sanction to each of the provisions that are enacted; to impress upon the people the utility of preserving it and the danger of suffering it to be violated, and to show the value we place on this and other institutions of freedom, not by suffering them to remain imperfect from a blind reverence for their antiquity, but by studying to improve, or, if possible, to perfect them, and by leaving to our children, not only unimpaired, but augmented, those privileges bequeathed to us by the wisdom and patriotism of our fathers.

The great objects in the execution of this division of the work, have been to protect the innocent from ill-founded prosecutions, and even the guilty from vexation, in the manner of conducting those which were necessary to ascertain their guilt. But at the same time, to insure the exact execution of the laws, and as far as possible to destroy the effect of those devices which professional ingenuity has so frequently used to procure the escape of the guilty. Some new provisions have been introduced to effect these objects, but where they could be obtained without innovation, none have been proposed. In those cases my endeavours have been confined to the arrangement of the law applicable to the different divisions, under its proper heads; and to giving precise and intelligible language to the rules of procedure. Even a slight notice of all the points in which changes or modifications of the present law have been suggested, would extend this report, already too long, to an inconvenient size. It may not be amiss, however, to mention a prohibition of those charges, which the judge frequently uses as the means of diffusing his political tenets, displaying his eloquence, and sometimes gratifying his passions; and of those presentments of the same nature, by which the jury recommend candidates to office, denounce public measures, or eulogize the virtues of men in power; such proceedings were thought beneath the dignity of the magistrate, and inconsistent with the sanctity of that body, whose functions of public accusers, and guardians of the liberty and reputation of their fellow-citizens, require calm investigation, undisturbed by intemperate discussions. If an ordinary court of justice be properly called the temple of that high attribute of the deity, we may, without too far extending the metaphor, term the tribunal of criminal jurisdiction, a shrine in that temple; the holy of holies, into which impure or unworthy passion should find no admittance, and where no one ought to officiate until he has put off the habits of ordinary life, and assumed, with the holy robes of his function, that purity of intention, that ardent worship of truth, so inconsistent with the low pursuits of interest, the views of ambition or the vanity of false talent. Party spirit unfortunately will, in some degree, influence every other department; from the nature of our government it must exist, but it will do no material injury, while it is felt in the legislative, or even in the executive branches; but if it once find admittance to the sanctuary of justice, we may be assured, that the vitals of

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our political constitution are affected, and I can imagine no better means of facilitating this corruption, than permitting your judges to make political harangues to a jury, who reply by a party presentment.

Another article applicable to the trial, restricts the charge of the judge to an opinion of the law, and to the repetition of the evidence, only when required by any one of the jury: the practice of repeating all the testimony from notes, always (from the nature of things) imperfectly, not seldom inaccurately, and sometimes carelessly, taken, has a double disadvantage; it makes the jurors, who rely more on the judges' notes than their own memory, inattentive to the evidence; and it gives them an imperfect copy of that, which the nature of the trial by jury requires they should record in their own minds. Forced to rely upon themselves, the necessity will quicken their attention, and it will be only when they disagree in their recollection, that recourse will be had to the notes of the judge. There is also another and more cogent reason for the restriction. Judges are generally men who have grown old in the practice at the bar. With the knowledge which this experience gives, they also acquire a habit, very difficult to be shaken off, of taking a side in every question that they hear debated, and when the mind is once enlisted, their passions, prejudices, and professional ingenuity are always arrayed on the same side, and furnish arms for the contest. Neutrality cannot, under these circumstances, be expected; but the law should limit, as much as possible, the evil that this almost inevitable state of things must produce. In the theory of our law, judges are the counsel for the accused, in practice they are, with a few honourable exceptions, his most virulent prosecutors. The true principles of criminal jurisprudence require that they should be neither. Perfect impartiality is incompatible with these duties. A good judge should have no wish that the guilty should escape, or that the innocent should suffer; no false pity, no undue severity should bias the unshaken rectitude of his judgment; calm in deliberation, firm in resolve, patient in investigating the truth, tenacious of it when discovered; he should join urbanity of manners to dignity of demeanour, and an integrity above suspicion, to learning and talent; such a judge is what, according to the true structure of our courts, he ought to be-the protector, not the advocate of the accused; his judge, not his accuser; and while executing these functions, he is the organ by which the sacred will of the law is pronounced. Uttered by such a voice, it will be heard, respected, felt, obeyed; but impose on him the task of argument, of debate; degrade him from the bench to the bar; suffer him to overpower the accused with his influence, or to enter the lists with his advocate, to carry on the contest of sophisms, of angry arguments, of tart replies, and all the wordy war of forensic debate; suffer him to do this, and his dignity is lost; his decrees are no longer considered as the oracles of the law; they are submitted to, but not respected; and even the triumph of his eloquence or ingenuity, in the conviction of the accused, must be lessened by the suspicion, that it has owed its success to official influence, and the privilege of arguing without reply. For these reasons the judge is forbidden to express any opinion on the facts which are alleged in evidence, much less to address any argument to the jury; but his functions are confined to expounding the law, and stating the points of evidence on which the recollection of the members of the jury may differ.