Mr. Stevens has explained the word rack, by calling it the laft fleeting veftige of the highest clouds, fcarce perceptible on account of their diftance and tenuity; and he adds, that what was anciently called the rack is now termed by failors, the feud. But neither rack nor feud denotes the airy, thin, unfubftantial nature of light and diftant clouds-but, as Mr. Malone obferves, their motion; or, as Mr. Pennant expreffes it, the driving of the clouds by tempefts. If rack, therefore, in this paflage, be underflood in the fame way as when we apply the word to the clouds, the fenfe must be leave not a cloud-like, tempeft-driven motion behind.' This, however, will not fuit the place, and Mr. Malone's fecond opinion (namely, that rack means a battered fragment) feems to be the molt probable: I am now inclined to think,' fays this ingenious commentator, that rack is a mifpelling for wrack. i. e. 6 wreck, which Fletcher has likewife used for a minu e broken fragment. See his Wife for a Month, where we find the word mifpelt, as it is in the Tempeft: He will bulge fo fubtilly and fuddenly, You may fhatch him up by parcels, like jea-rack.' It has been urged,' continues Mr. Malone, that objects which have only a vifionary and infubftantial exiftence, can, when the vifion is faded, leave nothing real, and confequently no wreck behind them. But this objection is founded on mifapprehenfion. The words leave not a rack (or wreck) behind,' relate not to the bafelefs fabric of this vision,' but to the final deftruction of the world, of which the towers, temples, and palaces fhall (like a vifion or pageant) be diffolved, and leave no veilige behind.' An Hiftorical Account of the HABEAS CORPUS ACT. F writs of Habeas Corpus, for removing prifoners from one court into another, for the more eafy adminiftration of justice, there are various kinds. But with refpect to Falfe Imprisonment, the great and efficacious writ is the writ of Habeas Corpus ad fubjiciendum, which is directed to the perfon detaining another, and commanding him to produce the body of the prifoner, with the day and caufe of his caption and detention, ad faciendum, fubjiciendum, et recipiendum, to do, fubmit to, and receive whatsoever the judge or court awarding fuch writ fhall confider in that behalf. This is a high prerogative writ, and there fore by the common law iffuing out of the court of king's-bench, not only in term-time, but alfo during the vacation, by a fiat from the chief justice, or any other of the judges, and running into all parts of the king's dominions for the king is at all times intitled to have an account why the liberty of any of his fubjects is reftrain ed, wherever that reftraint may be inflicted. If it iffues in vacation, it is ufually returnable before the judge himself who awarded it, and he proceeds by himself thereon; unless the term fhould intervene, and then it may be returned in court. Indeed, if the party were privileged in the courts of common pleas and exchequer, as being an officer or fuitor of the court, an habeas corpus ad fubjiciendum might alfo have been awarded from thence; and, if the caufe of imprisonment were palpably illegal, they might have difcharged him: but if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the court of king'sbench; which occationed the common pleas to difcountenance fuch applications. It hath also been faid, and by very refpectable authorities, that the like habeas corpus may illue out of the court of chancery in vacation: but, upon the famous application to lord Nottingham Nottingham by Jenks, notwithstand- it be by the command of the king, ing the most diligent fearches, no precedent could be found where the chancellor had iffued fuch a writ in vacation; and therefore his lordship refuted it. In the court of king's-bench it was, and is ftil, neceffary to apply for it by motion to the court, as in the cafe of all other prerogative writs (certicrari, prohibition, mandamus, &c.) which do not iffue as of mere courfe, without fhowing fome probable caufe why the extraordinary power of the crown is called in to the party's affiftance. For, as was argued by lord chief justice Vaughan, it is granted on motion, becaule it cannot be had of course; and there is therefore no neceffity to grant it: for the court ought to be fatisfied that the party has a probable caufe to be delivered.' And this feems the more reasonable, because, when once granted, the perfon to whom it is directed can return no fatisfactory excufe for not bringing up the body of the prifoner. So that, if it is iffued of mere courfe, without fhowing to the court or judge fome reasonable ground for awarding it, a traitor or felon under fentence of death, a foldier or mariner in the king's fervice, a wife, a child, a relation, or a domeftic, confined for infanity or other prudential reafons, might obtain a temporary enlargement by fuing out a labeas corpus, though fure to be remanded as foon as brought up to the court. And therefore fir Edward Coke, when chief juftice, did not fcruple, in 13 Jac. I, to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own fhowing, fuficient grounds to confine him. On the other hand, if a probable ground be shown, that the party is imprifoned without juft caufe, and therefore has a right to be delivered, the writ of habeas corpus is then a writ of right, which may not be denied, but ought to be granted to every man that is committed, or detained in prifon, or otherwife reftrained, though 3 the privy-council, or any other.' The perfonal liberty of the fubje&t is a natural inherent right, which cannot be furrendered or forfeited unlefs by the commiffion of fome great and atrocious crime, and which ought not to be abridged in any cafe without the fpecial permiffion of law. A doctrine coeval with the first rudiments of our conflitution; and handed down to us from the Anglo-Saxons, notwithstanding all their struggles with the Danes, and the violence of the Norman conquel: afferted afterward and confirmed by the conqueror himfelf and his defcendants: and though fometimes a little impaired by the ferocity of the times, and the occafional defpotifm of jealous or ufurping princes, yet etablished on the firmett bafis by the provisions of magna charta, and a long fucceffion of itatutes enacted under Edward III. .To affert an abfolute exemption from imprifonment in all cafes, is inconfiftent with every idea of law and political fociety; and in the end would dearoy all civil liberty, by rendering its protection impoffible: but the glory of the English law confifts in clearly defining the times, the caufes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful. This it is which induces the abfolute neceflity of exprefling upon every commitment the reafon for which it is made; that the court, upon a habeas corpus, may examine into its validity; and according to the circumftances of the cafe may difcharge, admit to bail, or remand the proner. And yet, early in the reign of Charles I, the court of king's-bench, relying on fome arbitrary precedents (and thofe perhaps mifunderstood) determined that they could not upon a habeas corpus, either bail or deliver a prifoner, though committed without any caufe affigned, in cafe he was committed by the fpecial command of the king, or by the lords of the privy-council. This drew on a par liamentary liamentary inquiry, and produced the petition of right, 3 Car. I, which recites this illegal judgment, and enacts that no freeman hereafter fhall be fo imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majefty's fpecial command, under a general charge of notable contempts and ftirring up fedition again't the king and government,' the judges delayed for two terms (including alfo the long vacation) to deliver an opinion how far fuch a charge was bailable; and when at length they agreed that it was, they however annexed a condition of finding fureties for their good behaviour, which still protracted their imprisonment; the chief juice fir Nicholas Hyde, at the fame time declaring, that if they were again remanded for that caufe, perhaps the court would not afterward grant a habeas corpus, being already made acquainted with the caufe of the imprisonment.' But this was heard with indignation and aftonishment by every lawyer prefent; according to Mr. Selden's own account of the matter, whofe refentment was not cooled at the diftance of four and twenty years. Thefe pitiful evafions gave rife to the ftatute 16 Cha. I. ch. 10. fec. 8. whereby it is enacted, that if any perfon be committed by the king himfelf in perfon, or by his privy council, or by any of the members thereof, he fhall have granted unto him, without any delay upon any pretence whatfoever, a writ of habeas corpus, upon demand or motion made to the court of king's-bench or common-pleas; who shall thereupon, within three court-days after the return is made, examine and determine the legality of fuch commitment, and do what to juftice fhall appertain, in delivering, bailing, or remanding fuch prifoner. Yet ftill in the cafe of Jenks, before alluded to, who in 1676, was committed by the king in council for a turbulent fpeech at Guildhall, new fhifts and devices were made ufe of to prevent his enlargement by law; the chief juftice (as well as the chancellor) declining to award a writ of habeas corpus ad fubjiciendam in vacation, though at lat he thought proper to award the ufual writs ad del berandum, &c. whereby the prifoner was ditcharged at the Old Bailey. Other abufes had alfo crept into daily practice, which had in fome meafure defeated the benefit of this great conftitutional remedy. The party imprifoning was at liberty to delay his obedience to the first writ, and might wait till a fecond and a third, called an alias and a pluries, were iffued, be fore he produced the party: and many other vexatious fh fts were practifed to detain ftate-prisoners in cuftody. But whoever will attentively confider the English hiftory, may obferve, that the agrant abufe of any power, by the crown or its minifiers, has always been productive of a ftruggle; which either ditcovers the exercife of that power to be contrary to law, or (if legal) reftrains it for the future. This was the cafe in the prefent inftance. The oppreffion of an obfcure individual gave birth to the famous habeas corpus act, 31 Car. II, ch. 2. which is frequently confidered as another magna charta of the kingdom; and by confequence has alfo in fubfequent times reduced the method of proceeding on thefe writs (though not within the reach of that ftatute, but iffuing merely at the common law) to the true ftandard of law and liberty. The ftatute itself enacts, 1. That the writ fhall be returned and the prifoner brought up, within a limited time, according to the diftance, not exceeding in any cafe twenty days. 2. That fuch writs fhall be endorsed, as granted in purfuance of this act, and figned by the perfon awarding them. 3. That on complaint and requeft in writing by or on behalf of any perfon committed and charged with any crime (unless committed for treafon or felony expreffed in the warrant, or for fufpicion of the fame, or as acceffary thereto before the fact, fame is refufed, forfeit feverally to the or convicted or charged in execution by legal procefs) the lord chancellor, or any of the twelve judges in vacaton, upon viewing a copy of the warrant, or affidavit that a copy is denied, fhall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas o pus for fuch prifoner, returnable immediately before himfelf or any other of the judges; and upon the return made thall difcharge the party, if bailable, upon giving feCu ty to a pear and antwer to the accufation in the proper court of judicature. 4. That officers and keepers negle&ing to make due returns, or not delivering to the prifoner or his a ent within fix hours after dema copy of the warrant of commitment, or shifting the custody of a p ner from one to another without Tullicient rean or authority (pecia in the act) fhall for the firit of fenc. forfeit 1. 1. and for the fecond offerce 2col. to the party grieved, and be difabled to hold his office. 5. That no perion, once deliv red by habeas corpus, fhall be recommit.ed for the fame offence, on per alty of 500l. 6. That every perion committed for treafon or iclony fhall, if he requires it the first week of the next term, or the first day of the next feffion of oyer and terminer, be indicted in that term or fellion, or elfe admitted to bail; unlets the king's witnefles cannot be produced at that time: and if acquitted, or if not indicted and tried in the fecond term or feffion, he thall be discharged from his imprifonment for fuch imputed offence: but that no perfon, after the affifes thall be opened for the county in which he is detained, fhall be removed by habeas corpus, till after the affifes are ended; but hall be left to the juice of the judges of affife. 7. That any fuch prifoner may move for and obtain his Labeas corpus, as well out of the chancery or exchequer as out of the king's-bench or common-pleas; and the lord chancell or judges denying the fame, on fight of the warrant, or oath that the 1. party grieved the fum of 500l. 8. That the writ of habeas corpus fhall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jerfey and Guernfey. 9. That no inhabitant of England (except perfons contracting, or convicts praying to be tranfported; or having committed fome capital offence in the place to which they are fent) fhall be fent prifoner to Scotland, Ireland, Jersey, Guernfey, or any places beyond the feas, within or without the king's dominions: on pain that the party committing, his advifers, aiders, and affiftants, shall forfeit to the party grieved a fum not less than 500l. to be recovered with treble colts; fhall be difabled to bear any office of truft or profit; shall incur the pe alties of pramunire; and fhall be incapable of the king's pardon. This is the fubitance of that great and important ftatute: which extends (we may obferve) only to the case of commitments for fuch criminal charge as can produce no i convenience to public justice by a temporary enlargement of the prifoner; all other cafes of unjuft imprisonment being left to the habeas corpus at common law. But even upon wits at the common law it is now expected by the court, agreeable to ancient precedents and the fpirit of the act of parliament, that the writ fhould be immediately obeyed, without waiting for any alias or pluries; otherwife an attachment will iffe. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjuft and illegal confinement. A remedy the more neceffary, because the oppreffion does not always arife from the ill-nature, but fometimes from the mere inattention, of government. For it frequently happens in foreign countries (and has happened in England during the temporary fufpenfions of the ftatute) that perfons apprehended upon fufpicion have fuffered a long imprifonment, merely because they were forgotten. THE THE BRITISH MUSE. PROLOGUE TO FONTAINVILLE FOREST. The Stage can have no motive to enforce thought The principles that guide your glorious courfe; Proceed triumphant-'mid the world's ap- Firm to your King, your Altars, and your The OCCASIONAL PROLOGUE, written Were requilite, to judge him as you ought. The Prologue, notwithstanding, keeps its A trembling Poet's folenn lamentation. Of critic batteries, of rival ftrife, The deftinies that fit the thin-fpun life." Our author chooses to prepare the way, With lines at leaft fuggefted by his play. Caught from the Gothic treafures of ro mance, He frames his work, and lays the fcene in The word, I fee, alarms-it vibrates here, Crufhing that Freedom, which, with gentle Courted their Revolution's infant day, 4 Its purcil fun has fet, alas, in blood! The regal fource of order, once destroy'd, 21, 1794. S tender plants, which dread the Bloom in the shelter of a tranquil vale, The liberal arts, fecure from danger, fpring; Through ravag'd Europe now, while Difcord reigns, And War's dire conflicts defolate her O, left they perith in this boafted age, rear, And fix, in fafety, their afylum here! Where willing fubjects equal laws obey, unites With order's bleffings Freedom's facred rights. 'Mid wrecks of empires, England, be it A bright example to the world to shine, The ftorms of Faction, and the strides of Hence have the mufes on the lifts of Fame, |