ground that there was no legal return to the writ because it was directed to the chief justice only, and not to the other judges of the court. But the court held the direction to be surplusage and that the return might be good without any direction at all. SECTION III. GENERAL REQUISITES OF THE RETURN. The command of the writ is twofold, the production of the body and a statement of the cause of the caption and detention. The requisites of the return may be considered under the following heads: 1st. The non-production of the body, with the reasons therefor. 2d. The production of the body, and the cause of the caption and detention. SECTION IV. NON-PRODUCTION OF THE BODY AND THE REASONS THEREFOR. 1. Importance of the production of the body. 2 Disability from want of possession, custody or power. 1. Importance of the production of the body. The production of the body constitutes an essential element of this proceeding. It is called a summary proceeding. It is one of applied justice. It is nerved with all the energy of the law. It begins with a power which belongs only to the final process of other proceedings, which is said to be the "life of the law." It deals with present restraints upon the living corporeal man, and it demands his presence before the court face to face with his jailor. Without the production of the body, said the Supreme Court of Massachusetts, the writ is without effect; the case has no status, and the court will hear no evidence upon the question of the validity of the imprisonment. Commonwealth v. Chandler, 11 Mass. Rep., 83. They will, however, inquire with great caution into the reasons assigned for not producing the body. There are several reasons which are accepted as sufficient. 2. Disability from want of possession, custody or power. The strictness of the law upon this point, and the consequences of an evasive return, are fully exemplified and the policy of the rule ably vindicated in the leading case of Rex. v. Winton, 5 T. R., 89, which was heard upon a rule to show cause why an attachment should not issue against the defendant. The affidavit of J. Greygoose, on which the writ in that case issued, stated that his wife was, in June 1790, seduced by the defendant, with whom she continued to live until the month of May last, when she returned to her husband; that about three days afterwards, in consequence of a letter written by the defendant, threatening to publish her conduct in case of a refusal to go back to him, she was induced to go back to the defendant, who, as the deponent believed, detained her by threats, and with whom she was now living in a state of adultery, but that she was desirous of returning to her husband. The return was: "I had not at the time of receiving this writ, nor have I since had, the body of the within named M. Greygoose detained in my custody, so that I could not have her before the within named W. H. Ashurst, as within I am commanded." BULLER, J. "I will first dispose of the last objection against the attachment, because it is of more general consequence than the two others. Notwithstanding what is to be found in some of the old books on this subject, it has long been settled that the court will require a return to be made to the first writ of habeas corpus; and it is of infinite importance to every individual in the kingdom that we should insist on a return being made to that writ without issuing an alias or pluries. If the first writ be not obeyed an attachment must issue immediately. Then it was argued, on the authority of a case in 2 Lev., that this is a sufficient return; but I am of opinion that that case is by no means an authority to support this return. There the words were widely different from those used in this case. There Sir R. Viner returned that 'he had no such person in his custody, nor had he on the day of issuing that (pluries) writ, or afterwards.' Here the return is, I had not at the time of receiving this writ, &c., nor have I since had the body, &c., detained in my custody, &c. This is an equivocal return; the defendant does not deny having the party, he only denies the detaining of her; but we must inquire when she is brought up whether she is detained or not." GROSE, J., said: "The court always look with a watchful eye at the returns to writs of habeas corpus. The liberty of the subject so essentially depends on a ready compliance with the requisitions of this writ that we are jealous whenever an attempt is made to deviate from the usual form of the return. The general form is, 'that the party has not the person in his possession, custody or power;' that has not been adopted in this case, but another, and that an equivocal one, adopted in its place, ' detained,' &c., omitting the words 'power and possession.' What the defendant means by the word 'detained,' I know not; but it does not satisfy me that the woman is not under the defendant's control." Rule absolute. In Elizabeth Warman's case, 1 W. Bl., 1204, a writ of habeas corpus was directed to Sir David Murray, Baronet, commanding him to produce the body of Elizabeth, wife of Edward Warman, with the causes of her taking and detaining; and upon affidavit that he detained her by force from her husband for unlawful and suspicious purposes, he returned that he did. not detain and never had detained her. The court thought this was no answer to the taking, and gave leave to amend his return, which he did, &c. The same doctrine was held and applied in the case of Samuel Stacy, Jr., 10 Johns., 328, where it was also held that an attachment, where the return was evasive, would not in all cases be delayed until a rule to show cause why it should not issue had been served. In that case the writ was directed to Morgan Lewis, as commander of the troops of the United States at Sackett's Harbor, and under his title of "General of Division in the army of the United States." He returned "that the within named Samuel Stacy, Jr., is not in my custody." KENT, CH. J. "This was evidently an evasive return. He ought to have stated, if he meant to excuse himself for the non-production of the body of the party, that Stacy was not in his 'possession or power.' "The only question that can be made is whether the motion for an attachment shall be granted, or whether there shall be only a rule upon the party offending to show cause, by the first day of next term, why an attachment should not issue. It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of those means is this writ of habeas corpus, which has justly been deemed the glory of the English law. "On ordinary occasions the attachment does not issue until after a rule to show cause, but whether it shall not issue in the first instance must depend upon the sound discretion of the court, under the circumstances of the particular case. It may and it often does issue in the first instance, without a rule to show cause, if the case be urgent or the contempt flagrant." Rex v. Jones, Str., 185; Davies ex dem. Powers v. Doe, 2 Bl. Rep., 892; Rex v. Earl Ferrers, 1 Burr., 631. The court granted the attachment, regarding the case as urgent, but gave it an alternative form, indicating thereby that they did not regard the contempt as flagrant. The following is a copy of the order: “Ordered, that an attachment in this cause issue against General Morgan Lewis, but that the same be accompanied with a copy of this rule, which is to operate as instructions to the sheriff not to serve the same, if General Morgan Lewis shall forthwith, upon service of a copy of this rule upon him, discharge the said Samuel Stacy, Jr., or shall cause him to be brought before Nathan Williams, Esq., commissioner, &c., in obedience to the habeas corpus heretofore issued by him in this cause." It was formerly held that the return should show that the defendant had not the party in his possession, custody or power, not only at the time of the |