e long continuance
of the silent and inglorious sufferings of a jail. The power of
imprisonment, therefore, being the most natural and potent engine of
arbitrary government, it is absolutely necessary to remove it from a
government which is free and legal.

The partisans of the court reasoned after a different manner. The true
rule of government, said they, during any period, is that to which the
people, from time immemorial, have been accustomed, and to which they
naturally pay a prompt obedience. A practice which has ever struck their
senses, and of which they have seen and heard innumerable precedents,
has an authority with them much superior to that which attends maxims
derived from antiquated statutes and mouldy records. In vain do the
lawyers establish it as a principle, that a statute can never be
abrogated by opposite custom; but requires to be expressly repealed by
a contrary statute: while they pretend to inculcate an axiom peculiar to
English jurisprudence, they violate the most established principles of
human nature; and even by necessary consequence reason in contradiction
to law itself, which they would represent as so sacred and inviolable. A
law, to have any authority must be derived from a legislature which has
right. And whence do all legislatures derive their right, but from long
custom and established practice? If a statute contrary to public good
has at any time been rashly voted and assented to, either from the
violence of faction or the inexperience of senates and princes, it
cannot be more effectually abrogated by a train of contrary precedents,
which prove, that by common consent it has been tacitly set aside, as
inconvenient and impracticable. Such has been the case with all those
statutes enacted during turbulent times, in order to limit royal
prerogative, and cramp the sovereign in his protection of the public,
and his execution of the laws. But above all branches of prerogative,
that which is most necessary to be preserved, is the power of
imprisonment. Faction and discontent, like diseases, frequently arise in
every political body; and during these disorders, it is by the salutary
exercise alone of this discretionary power, that rebellions and civil
wars can be prevented. To circumscribe this power, is to destroy its
nature: entirely to abrogate it, is impracticable; and the attempt
itself must prove dangerous, if not pernicious to the public. The
supreme magistrate, in critical and turbule