364 HABEAS CORPUS writ forthwith with a full statement of his do- ings. 7. It must be returned before the proper magistrate at chambers, if a court to which it is made returnable be not then in session. 8. Upon the return, the alleged prisoner being present, the case is tried ; and unless sufficient cause for his imprisonment is shown, he is ordered to be discharged at once. 9. If not wholly discharged, the court or magistrate may order him to be discharged on giving reason- able bail, if he be held for any bailable offence or cause. 10. In some of the states it is pro- vided that the writ may not issue if the party restrained be imprisoned for crime, or in exe- cution civil or criminal, and by lawful warrant. In others these exceptions are not made, but if facts like these appear on trial, the prisoner is remanded. 11. In general, after a party has been discharged on habeas corpus, he cannot be again imprisoned or restrained of his liber- ty for the same cause. 12. The issuing of the writ by the magistrate applied to, and prompt and full obedience to it by the officer or other person to whom it is directed, are secured by very heavy penalties ; and also by the fact that any applicant to whom the writ is refused by one magistrate may apply to another, and the number of those to whom he may thus resort is so large that it is hardly possible for them all to be corrupted, or for any reason indis- posed to render due obedience to the law. The vast importance of this law can be appreci- ated only by those who have studied the his- tory of despotism ; although it discloses only what might have been inferred with almost equal certainty from the reason of the thing. Whether the ruling authority of a nation (be it in the hands of one or of many) shall be abso- lute or subordinated to law must depend, in the last result, upon its power over the persons of those who are subject to it. Whatever be the law, if there be a sovereign who may dis- regard it, and put in strict imprisonment those who would resist him; if he may substitute his own commands for law, and take away from society and from all power of resort to law those who do not obey him; it is perfectly obvious that there can be no disobedience and no resistance which is not rebellion if it be put down, or revolution if it succeed. The histo- ries of France and of England offer the most perfect illustration of this. Beginning from the feudal ages, they stood then about upon an equality in respect to the power of the sover- eign and the personal rights of the subject. Under some of her monarchs, of the Plantage- net and Tudor families, England seemed to be yielding herself np to a more absolute tyranny than was known to her neighbor. But as the ages went on, it became apparent in France that the subjection of the citizen to the sover- eign became with every generation more com- plete. By insidious rather than open increase, the power of the king, or rather the power of ministers who acted in the name of the king, to imprison at their pleasure whom they would, for political or personal, public or private rea- sons, became so entirely established, that every minister of the crown had, it is said, a large number of blank lettres de cachet (or letters under the privy seal of the king) which he could fill with names at his pleasure, and by which the police were authorized and com- manded to imprison the party named and hold him in prison at the pleasure of the minister. The Bastile became a recognized instrument of state ; and in its cells lay those who were placed there only at the suspicion or the caprice of some minister, and who remained there only because they were forgotten. Of course this state of things could not last ; for no one ac- quainted with human nature could doubt that such irresponsible and enormous power would be enormously abused, and lead its possessors into folly and insanity. Therefore the French revolution came to do the work which must be done, and only revolution could do, and therefore the reign of terror almost necessarily replaced the despotism which had been its pa- rent. If we now turn to England, we shall see that in the Anglo-Saxon times despotism was rarely attempted, and never successful; that the laws and institutions of those days are all founded on the presumption of personal liberty and rights; that this element of character might for a time be suppressed or enfeebled, but that it could never be annihilated ; that it rose from time to time into prominence and activity, and, as opportunity offered or could be made, gradually asserted itself: first in the fact of a common law, which the courts re- garded as binding upon them ; then in the rec- ognition of personal liberty and right as an un- questionable principle of common law; then by such timely assertions as in Magna Charta, in the petition of right, and finally in the act of habeas corpus. That this act is sufficiently valued in the United States may be inferred from the fact that the federal constitution (art. I., sec. 9, No. 2) provides that " the provisions of the act shall not be suspended, unless when in case of rebellion or invasion the public safety may require it ;" and there is a provision to the same effect in some of the state consti- tutions. Everywhere the statute itself is en- acted, and, so far as words can have the effect, made stringent and effectual. By various acts of congress jurisdiction is conferred upon the federal courts to issue the writ of habeas cor- pus in cases of confinement by federal or un- der pretence of federal authority, and also in other cases where it may be necessary to the enforcement of federal jurisdiction. How far the state courts have the right to inquire into unlawful restraints upon personal liberty under claim of federal authority has been the subject of no little discussion and conflict of decision. The supreme court of the United States has finally determined that though the state courts may issue the writ in all cases, yet when it appears by the return that the restraint is un- der a claim of federal authority, they can pro-
