tion of the Judge, by returning what is called a Special Verdict: that, whenever circumstances seem to alleviate the guilt of a person, against whom nevertheless the proof has been pofitive, they temper their verdict by recommending him, to the mercy of the King; which feldom fails to produce at least a mitigation of the punishment: that, though a Man once acquitted, can never under any pretence whatsoever be again brought into peril for the fame offence, yet a new Trial would be granted, if he had been found guilty upon proofs strongly fufpected of being falfe (Black, b, iv. c. 27.) Laftly, what distinguishes the laws of England from thofe of other Countries in a very honourable manner, is, that as the torture is unknown to them, fo neither do they know any more grievous punishment than the fimple deprivation of life.

1

All these circumstances have combined to introduce fuch a mildness into the exercife of criminal Juftice, that the trial by Jury is that point of their liberty to which the people of England are most thoroughly and univerfally wedded; and the only complaint I have ever heard uttered against it, has been by Men who, more fenfible of the neceffity of public order than alive to the feelings of humanity, think that too many offenders escape with impunity.

N 4

CHAP.

CHA P. XIV.

The Subject concluded. Laws relative to Imprisonment.

BUT what completes that fenfe of independ ence which the laws of England procure to every individual (a fenfe which is the nobleft advantage attending liberty) is the greatness of their precautions upon the delicate point of imprison

ment.

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

But it is against the Executive Power that the Legiflature has, above all, directed its efforts: nor has it been but by flow degrees that it has been enabled to wreft from it a branch of

power which enabled him to deprive the people of their Leaders, as well as to intimidate those who might be tempted to affume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the moft formidable weapon with which it might attack public liberty.

The

The methods originally pointed out by the laws of England for the enlargement of a perfon unjustly imprifoned, were the writs of mainprize, de odio & atia, and de homine replegiando. Thofe writs, which could not be denied, were an order to the Sheriff of the County in which a perfon was confined, to inquire into the causes of his confinement; and, according to the circumftances of his cafe, either to discharge him completely, or upon bail.

ourt of

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, fo called, because it begins with the words Habeas corpus ad fubjicicndum. This writ, being a writ of high prerogative, muft iffue from the King's Bench: its effects extend equall to every County; and the King by it requires, or is understood to require, the perfon who holds one of his fubjects in cuftody, to carry him before the Judge, with the date of the confinement, and the cause of it, in order to difcharge him, or continue to detain him, according as the Judge fhall de

cree.

But this writ, which might be a resource in cafes of violent imprisonment effected by individuals, or granted at their requeft, was but a feeble one, or rather was no refource at all against

the

the prerogative of the Prince, especially under the reigns of the Tudors, and in the beginning of that of the Stuarts. And even in the first years of Charles the First, the Judges of the King's Bench, who, in confequence of the spirit of the times, and of their holding their places durante bene placito, were conftantly devoted to the court, declared, "that they could not, upon a Habeas Corpus, ei"ther bail or deliver a prifoner, though commit“ted without any cause affigned, in case he was "committed by the fpecial command of the King, or by the Lords of the Privy Coun"cil."

Those principles, and the mode of procedure which refulted from them, drew the attention of Parliament; and in the Act called the Petition of Right, paffed in the third year of the reign of Charles the First, it was enacted, that no perfon should be kept in custody, in consequence of fuch imprisonments.

But the Judges knew how to evade the intention of this Act: they indeed did not refuse to difcharge a Man imprisoned without a caufe; but they used fo much delay in the examination of the causes, that they obtained the full effect of an open denial of Justice.

The Legislature again interpofed, and in the Act paffed in the fixteenth year of the reign of Charles

Charles the First, the fame in which the StarChamber was fuppreffed, it was enacted, that "if any person be committed by the King "himself in perfon, or by his Privy Council, "or by any of the Members thereof, he fhall "have granted unto him, without any delay r upon any pretence whatsoever, a writ of "Habeas Corpus; and that the Judge fhall

thereupon, within three Court-days after the "return is made, examine and determine the legality of fuch imprisonment."

This Act seemed to preclude every poffibility 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 fecond, and a third writ, called an Alias and a Pluries, before he produced him.

All these different artifices gave at length birth to the famous Act of Habeas Corpus, paffed in the thirtieth year of the reign of Charles the Second, which is confidered in England as a fecond Great Charter, and has finally suppressed all the refources of oppreffion*.

The principal articles of this Act are, to fix

The real title of this Act is, An Act for better fecuring the Subject, and for Prevention of Imprisonment beyond the Seas.

the