of a fiend could invent, to prolong its duration and increase its torments; yet there was no diminution of crime; and it never occurred to you, that mildness might accomplish that which could not be effected by severity." This great truth revealed itself to philosophers, who imparted it to the people; the strength of popular opinion at length forced it upon kings, and the work of reformation, in spite of the cry against novelty, began. It has been progressive. Why should it stop, when every argument, every fact, promises its complete success? We could not concur in the early stages of this reformation; perhaps the credit may be reserved to us of completing it; and I therefore make no apology to the general assembly for having so long occupied them with this discussion. In imposing so important a change, it was necessary to state the prominent reasons which induced me to think it necessary; many more have weighed upon my mind, and on reviewing these, I feel with humility and regret how feebly they are urged. The nature of the subject alone will, however, create an interest sufficient to promote inquiry, and humanity will suggest arguments which I have not had sagacity to discover or the talent to enforce.

Having stated the reasons which induced me to discard all the different punishments which have been reviewed, I proceed to a short discussion of those which have been adopted. These are

Pecuniary fines; degradation from office; simple imprisonment; temporary suspension of civil rights; permanent deprivation of civil rights; imprisonment at hard labour; solitary confinement during certain intervals of the time of imprisonment, to be determined in the sentence. The advantage of this scale of punishment is, that it is divisible almost to infinity; that there is no offence, however slight, for which it does not afford an appropriate corrective; and none, however atrocious, for which, by cumulating its different degrees, an adequate punishment cannot be found.

When to these are added the regulations which are made in certain cases, as to the nature of food and other comforts, during the term of punishment, it has, in an almost perfect degree, the essential quality of being capable of apportionment, not only to any species of offence, but to every offender. Sex, age, habits, constitution, every circumstance which ought to determine the exercise of discretionary power, may have its proper weight.

Reformation of the criminal may reasonably be expected.

He is effectually restrained from a repetition of his crime.

A permanent and striking example is constantly operating to deter others.

The punishment being mild, public feeling will never enlist the passions of the people in opposition to the law.

The same cause will ensure a rigid performance of their duty by public officers.

Jurors, from a false compassion, will seldom acquit the guilty; and if by chance or prejudice they should convict the innocent, their error or fault is not as in the cases of infliction of stripes-permanent stigmas, or death-without the reach of redress.

These are advantages which render the penitentiary system decidedly superior to any other.

To detail the mode in which these different punishments are composed and applied to the different offences, would be to repeat the pro

visions of the whole book, which cannot be expected from the nature. of this report; enough, and I fear more than enough, has been said on this division of the work.

I proceed to the plan of the fourth book, which, as we have seen, is intended to give rules of practice in all criminal proceedings.

It regulates the mode in which complaints and accusations are to be made; designates the proper persons to receive them, and directs their duty in conducting the examination; taking the evidence on the complaint, and ordering the arrest; prescribes the form of warrants; and designates precisely the cases where arrests may be made without them. It prescribes minutely the duties, and defines the authority, as well of officers as of individuals, who assist them in making arrests. It regulates the mode of conducting the examination, and the manner of making commitments, so as to avoid the frequent escapes of the guilty from the former defective practice on this head.

The manner in which the person is to be treated, during his confinement, is minutely detailed; provisions are introduced to prevent or punish all abuses of authority in those who arrest or have charge of the prisoner.

Rules are laid down for directing the discretion of the magistrate, and ascertaining his duties in admitting to bail.

The manner in which accusations, and the evidence to support them, are to be brought before the proper court, is distinctly described.

Rules are presented for the organization and mode of conducting business before grand juries. Their duties are defined, as are those of the public prosecutor, in presenting indictments before them.

The cases are distinguished which are to be prosecuted by indictment, from those in which information may be filed.

Rules are laid down for drawing acts of accusation, so as to secure a proper degree of certainty in the allegation of the offence, but to prevent the escape of the guilty from formal defects.

The mode of making the arraignment; the manner of pleading; the rules for conducting the trial; the duties of the judge; of the advocate for the accused, and of the public prosecutor, in relation to it, are minutely marked out.

Regulations are made for summoning, swearing, and challenging jurors, and for their government on the trial, and on the delivery of the verdict.

Directions are given for summoning and securing the attendance of witnesses.

The causes are designated for which judgments may be arrested and new trials granted, and all the proceedings subsequent to the verdict are provided for.

A chapter is dedicated to the regulation of the manner in which search-warrants are to be granted and executed, and another to the designation of the cases in which security may be required against the commission of apprehended offences. Contempts are defined, and the mode of trying and punishing them is marked out.

The last chapter of this book contains a system of proceeding on writs of habeas corpus.

This chapter will be the first act of legislation in our state on this subject; important enough, it would seem, to have sooner engaged our attention. This writ was known in a remote period of the English

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.

1. 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