On the evafion of the writ of Habeas Corpus. I AM fure the notes from which the account given of lord chief justice Pratt's fpeech in the affair of Mr. Wilkes, must not have done juftice to that learned judge, who is remarkable for the perfpicuity with which he expreffes himself on all occafions. At least I must own what is there fet down, conveys no diftinct idea to me, of the most interesting part of the fubject. Privilege of parliament concerns but a few, and it is in no great hazard of being much hurt, while the protection of it is in the hands of thofe to whom it belongs. But liberty in general is the cause of every man, and the security of it cannot be too great nor too well understood. I wish, therefore, some of the gentlemen of the law would be fo obliging to the public, as to give us a more perfect account of the determination upon the first point, which feems to have been agitated in the late debate. I take the liberty to make it my humble request, through the channel of your paper, because I have frequently observed very fatisfactory folutions given in it of questions of law that are of general concern, which, in my opinion, does great honour to the generofity and public spirit of the profeffion. I fhould be glad to be informed if it is certainly held to be law in all cafes, that a juftice, or any magiftrate of the peace (and it seems a fecretary of ftate is confidered to be no more) cap, without information upon oath, or other ground, in its own nature tantamount or fuperior, charge a perfon as guilty of an offence, and commit him to prifon; barely mentioning the offence in the warrant, and making what is called the charge, which, from what iş in your paper, I understand to be no more than the affirmation of the magistrate, that the perfon is guilty of that particular offence named in the warrant, or the act of commitment on that account, for for it seems it don't mean the accufation of any other perfon, which is fet forth in the warrant, as the ground upon which the magiftrate proceeds. If that be law, I cannot help apprehending the liberty of the fubject is not fo well fecured, as most people imagine, when they talk of the Habeas Corpus act as the great bulwark of it. They tell me there is hardly any thing done, not a motion of the fimplest nature heard, in any of the courts in Westminsterhall, but upon an affidavit of the fact upon which it is grounded.-That one cannot have a warrant to fearch for ftolen goods, nor an officer of the revenue (as I am informed) a warrant to fearch for run goods, without an information upon oath.-Nay, if an Habeas Corpus is moved for, there must be a copy of warrant of commitment produced, or affidavit to fhew that it has been refufed, and a request by, or on behalf of the perfon confined, attested by two witneffes. I cannot help thinking it ftrange, if lefs be neceffary to refrain than is required to restore liberty; or that a man's perfon fhould be liable to be invaded, with an inferior degree of caution or formality, than is neceffary to get access to fearch his boufe. I fee it is mentioned, in thefe imperfect fcraps put into the Gazetteer, to have been faid, that no magiftrate had a right, ex officio, to apprehend any perfon; and I have been informed by fome who were prefent, that my lord chief juftice did exprefs himself fomething to that purpose; and that he even went fo far as to fay, that, fuppofing (which he thought the strongest cafe that could be put) that a magiftrate knew, of his own proper knowledge, that a perfon had been guilty of an offence, he did not think it was fufficient ground for him to commit the criminal, but that he ought rather to go and make oath of the fact before another magiftrate, who fhould thereupon act the official part, by granting a warrant to apprehend the offender, it being more more fit that the accufer, in that cafe, fhould appear as a witness, than act as a magiftrate. I fhould have been apt from thence to conclude, that there was always fomething extrinfic to the warrant of the magiftrate, neceffary to be as a legal ground for it; and of confequence, that the magiftrate who committed with a mere charge, such as the lord chief juftice (according to the notes in the papers) explained that word to fignify, that is his own affirmation, that the perfon committed was guilty, acted illegally, and that his warrant was not a legal warrant. For it appears to be fo like a commitment merely ex officio, that one cannot, I think, easily discover the difference, at leaft from any thing that appears upon the face of fuch a warrant as is fuppofed. But it feems it is otherwife; and there must be fome diftinction, which is not fufficiently explained by any thing I have feen or heard of the argument, to make it to be understood by thofe, who know as little of the law as I pretend to do, which is nothing at all. And I am certain the great and learned judge would not leave a matter of that confequence in the dark, when pronouncing an opinion to which it was fundamental and effential, fo far as I am able to judge from the nature of the question in debate, and the train of the argument upon it. I dare fay it would be very fatisfactory to a great many, who are in the fame fituation with me, that is, thofe who have no particular concern in the affair which brought on this question, but are defirous to know the real ftate of a matter in which every man is concerned. I would therefore hope fome kind perfon or other, will have fo much goodness as to favour the public with a just account of it, as little mixed as poffible with profeffional terms or modes of fpeech, that it be of the general ufe it ought to be defigned for. may I may venture to trouble you with a few other reflections upon this fubject: but not to take too much much of your useful paper from correfpondents of greater value, I conclude for the present. LIBERTAS LÆSA NULLA REPARABILIS ARTE. The fame fubject continued. THE defign of the reflections in my laft, was to get fuch information of the law, as might lead gentlemen to consider how far the liberty of the subject is fufficiently fecure against illegal imprisonment, as the law now ftands; and in further purfuit of the fubject, with the fame view I would now beg leave to obferve, that I can very well conceive that an information upon oath fhould not always be required in order to a commitment, for it certainly is not the only fatisfactory and juft ground for a warrant, and therefore I fhould imagine cannot be the only legal one; as I hope the law agrees with common fenfe. Evidence by writing, where the fact is capable of fuch proof; or by examinations of witneffes upon a general fufpicion; or public and immediate view, in fome cafes, may, I fhould take it, be a very fufficient ground for a magiftrate to proceed to apprehend and commit: and fuch a commitment could not be faid to be merely ex officio, because there is a ground of fact, extrinfic to the act of the magiftrate, which puts his office into motion, and is properly the foundation of the warrant he issues. But I do think the office of a magiftrate of the peace is a thing that ought to be, as it is in its nature, dormant, till it is moved by a fact, fome how or other legally brought under the cognizance of that jurifdiction which belongs to the office. Every legal act of office fhould require to fupport it a party (diftinct from the magistrate) to appear as the perfon who feeks the interpofition of his power, or at least fomething that in its own nature can ftand in the ftead ftead of fuch a party; I have fuppofed that evidence by writing, or by examinations of witneffes, in a cafe of general fufpicion, or public and immediate view, may anfwer that purpose, being like the demand of every body, and of the public fecurity, the cries of which no magiftrate ought to be deaf to, as his very office is appointed to watch over it. I don't know how lawyers may confider this: butto plain fense I think it is pretty clear, that fuch a prerequifite, to warrant the interpofition of a magistrate, by an act that restrains the perfonal liberty of the subject, which is in truth inflicting a very fevere punishment of itself, ought to be neceffary; because it is, and muft be, a fecurity against acts of mere power, which will most likely be found to be nothing else than inftances of tyranny. Power is enough to be in one hand; there fhould be fome extraneous spring to fet it a going. For as tyranny is the degeneracy of power, we know from experience that nothing is more apt to degenerate than power. There is a certain love of dominion natural to mankind, which leads them to grafp at power; and the love of power gratifies itself by exercifing it, which renders it very fit that reafonable checks fhould always controul power, to prevent an undue exercise of it. Upon fuch ideas as thefe I wifh, if it is not, that it was law, that to make an imprifonment legal, there fhould always be fomething befides the warrant of commitment, and the office of the magiftrate who grants it; fomething upon which the warrant should stand as its foundation. And if that was fo, I should also imagine that the foundation, whatever it is, ought to appear upon the face of the warrant itself; unless there is fome good reafon against it; which may be known to the gentlemen of the law, though I am ignorant of it. My reafon for imagining it fhould appear, is this, that if it do not (fuppofing it really to exift and to have been the cause of the warrants being granted) it is fill fo like a commitment merely ex officio, which it feems is not |