not be indicted and tried in the second term or sessions of gaol delivery, he shall be discharged.

The remedies of the habeas corpus act are so effectual that no man can possibly endure any long imprisonment on a criminal charge, nor would any minister venture to exercise a sort of oppression so dangerous to himself. But it should be observed that, as the statute is only applicable to cases of commitment on such charge, every other species of restraint on personal liberty is left to the ordinary remedy as it subsisted before this enactment. Thus a party detained without any warrant must sue out his habeas corpus at common law; and this is at present the more usual occurrence. But the judges of the King's Bench, since the statute, have been accustomed to issue this writ during the vacation in all cases whatsover.

A sensible difficulty has, however, been sometimes felt, from their incompetency to judge of the truth of a return made to a writ. For, though in cases within the statute, the prisoner may always look to his legal discharge at the next sessions of gaol delivery, the same redress might not always be obtained when he is not in custody of a common gaoler. If the person therefore who detains any one in custody should think fit to make a return to the writ of habeas corpus, alleging matter sufficient to justify the party's restraint, yet false in fact, there would be no means, at least by this summary process, of obtaining relief. An attempt was made in 1757, after an examination of the judges, by the House of Lords, as to the extent and efficiency of the habeas corpus at common law, to render their jurisdiction more remedial.

It failed, however, for the time, of success; but a statute has recently been enacted, 56 Geo. III., c. 100, which not only extends the power of issuing the writ during the vacation, in cases not within the Act of Charles II. to all the judges, but enables the judge, before whom the writ is returned, to inquire into the truth of the facts alleged therein, and in case they shall seem to him doubtful, to release the party in custody, on giving surety to appear in the court to which such judge shall belong, on some day in the ensuing term, when the court may examine by affidavit into the truth of the facts alleged in the return, and either remand or discharge the party, according to their discretion. It is also declared that a writ of habeas corpus shall run to any harbour or road on the coast of England, though out of the body of any county; in order, I presume, to obviate doubts as to the effects of this remedy in a kind of illegal detention, more likely perhaps than any other to occur in modern times, on board of vessels upon the coast. Except a few of this description, it is very rare for a habeas corpus to be required in any case where the government has an interest." 2 Hallam Const. Hist., 177-180.

An elegant and philosophical writer, referring to the habeas corpus act, says: "We must admire, as the keystone of civil liberty, the statute which forces. the secrets of every prison to be revealed, the cause of every commitment to be declared, and the person of the accused to be produced, that he may claim his enlargement, or his trial within a limited time. No wiser form was ever opposed to the abuses of

power. But it requires a fabric no less than the whole political constitution of Great Britain, a spirit no less than the refractory and turbulent zeal of this fortunate people, to secure its effects." Ferguson's Essay on Civil Society, 302.

The French philosopher, M. De La Croix, also, in his Review of the Constitutions of the Principal States of Europe, in 1792, concedes to England the highest meed of praise in the career of civil liberty, and acknowledges the writ of habeas corpus to be a peculiar characteristic of her laws, and the habeas corpus act of 31 Car. 2, an admirable and not unenvied security of personal liberty. After copying the act, he says: "Such is the spirit of this law, so important to England, and which France has so long envied her rival." 2 Vol., 290.

The attempt made in 1757, to improve the law relating to habeas corpus, deserves more particular notice. The bill was introduced by Mr. Pratt, afterwards Lord Camden, who in 1766 in the House of Lords, reasoned upon American affairs, and the rights and liberties of the Colonists, in a strain of eloquence which Pitt called divine. 2 Campbell's Lives Ch. Jus., 453; 5 Bancroft, 404.

The occasion and object of it are thus stated in 3 Bac. Abr., Hab. Corp., B., 13, note: "A gentleman having been impressed under a pressing-act, passed in the preceding session, and confined in the Savoy, his friends made application for a writ of habeas corpus, which produced some hesitation and difficulty; for according to the above statute (31 Car. 2) the privilege relates only to persons committed for

criminal or supposed criminal matter; and this gentleman did not stand in that predicament. Before the question could be determined, he was discharged in consequence of an application to the Secretary at War; but the nature of the case seeming to point out a defect in the act, a bill for giving a more speedy remedy to the subject upon the writ of habeas corpus, was prepared and presented to the House of Commons. It imported, that the several provisions made in the above act of 31 Car. 2, for the awarding of writs of habeas corpus in cases of commitment, or detainer for any criminal or supposed criminal matter, should in like manner extend to all cases where any person, not being committed or detained for any criminal or supposed criminal matter, should be confined or restrained of his or their

liberty under any color or pretence whatsoever; that upon oath made by such person so confined or restrained, or by any other person on his behalf, of any actual confinement or restraint, and that such confinement or restraint, to the best of the knowledge and belief of the person so applying, was not by virtue of any commitment or detainer for any criminal or supposed criminal matter: an habeas corpus, directed to the person or persons so confining or restraining the party, should be granted in the same manner as is directed, and under the same penalties as are provided by the said act in case of persons committed or detained for any criminal or supposed criminal matter; that the person before whom the party should be brought by virtue of an habeas corpus, granted in vacation-time under the

authority of this act, might and should within three days after the return made, proceed to examine into the facts contained in such return, and into the cause of such confinement and restraint, and thereupon either discharge, or bail, or remand the party so brought, as the case should require, and as to justice should appertain. The rest of the bill related to the return of the writ in three days, and the penalties upon those who should neglect or refuse to make the return, or to comply with any other clause of this regulation. See the bill and the arguments for and against it, in the Appendix to Vol. 7, Debrett's Debates, from 1743 to 1774. The bill was soon passed by the Commons; but in the House of Lords, it was thrown out at the second reading, and the judges were ordered to prepare a bill to extend the power of granting writs of habeas corpus ad subjiciendum in vacation-time, in cases not within the statute of 31 Car. 2, to all the judges of his majesty's courts at Westminster, and to provide for the issuing of process in vacation-time to compel obedience to such writs; and that in preparing such bill they take into consideration, whether in any, and in what cases, it may be proper to make provision that the truth of the facts contained in the return to a writ of habeas corpus may be controverted by affidavits or traverse, and so far as it shall appear to be proper, that clauses be inserted for that purpose, and that they lay such bill before the House in the beginning of the next session of Parliament. The matter however was never resumed."

The bill was opposed by Lord Mansfield in the House of Lords. He contended that it was wholly