The daily crescent., 1849-06-09
" T. W q X L E A ~ 3:
SATURDAY MORNING, JUNE 9, 1s4o.



Habeas Corpus-Election of Judges by the People.
On Tuesday last a question of the highest impor-
lance to every individual in the community, was
decided by the Supreme Court of the State OF Louis
lana. A petitioner for habeas corpus was, a
few days ago. brought before the Judge of one of
the District Courts who, after hearing the cause,
set the prisoner at liberty. The parties interested
ia maintaining the imprisonment, asked for sus-
pelkve appeal-that is an appeal delaying the
execution of the judgment until it is confirmed by
the Superior Court. But this the District Judge
fused. Thereupon, the parties thinking themselves
aggreved by the refusal, asked the Superior Court
for order directing the inferior Judge TO grant
suspensivc appeal. Two of the judges of the Su-
premc Court were in favor and two against the
granting of the order. Hence, the Judgment of the
lower Court stands affirmed.
We wish to fix attention particularly on the fact,
that two out of the four judges of the present Su-
preme Court were in favor of giving an order which
would render the right of habeas corpns-that great
right guaranteed to us by the constitution and con-
secrated by long, and so far as the United States
are concerned, immemorial usage-en,irely nuga-
tory and ineffective. If after the cause of mans
imprisonment is stated and the judge thinks it 10
set him at liberty, third party may come in and
virtually order the prisoner to be re-commited
merely by praying for suspensive appeal, of what
force or validity is the Judgment given The petit
ton for habeas corpus The applicant for the
labeas corpus is kept in Jail though lie has proved
10 the Court that his imprisonment is Illegal; and
the law is thus placed in the very grave predca-
ment of taking away mans personal liberty, al
though it has already declared that lie is guilty Of
no offence warranting such treatment. The grant
ing of a suspensive appeal on petition for habeas
corpus, leads to many absurdites and is OPP
posed TO the whole spirit and genius Of our nsttu-
tions that we are at loss to know how any Judge
could favor such measure.
We have been told, however, that Judge Siidell
delivered very long, and quite an able opinion,
maintaining the position that such an appeal might
be granted, and it is said that he grounded his de-
cision on numerous DEGREES of the Supreme Court
in previous cases. But, in our humble opinion,
though decisions innumerabe were cited" Pelion
upon Ossa piled iii support of such position, a
Judge ought not hesitate to take the side of right
and Justice against judicial wrong and Judicial
tyranny.
The whole history of the writ of habeas corpus
even before it was transplanted from England
into Amerca-prOves that it was intended as a
speedy and sure means for releasing man illegally
imprisoned. In fact, take away from it its summary
nature-make it one of the ten thousand cases in
which the laws delay wears out the suitor's purse
and wastes his strengtll-and you destroy its power
to protect the citizen in the enjoyment of his per-
sonal liberty. And, TO confirm the deductions
which would be drawn from the history of the
writ, the Code of Practice especially says that
"the Judge shall Immediately set the prisoner al
liberty Though all the volumes Of Louisiana
Reports were filled with decisions contrary to this
plain article of the Code, it is the duty of judge
to bring the law back to its original purity, and
enforce the evident intention of the law. making
power.
The fact that q Judge Of the Supreme Court
places more value on the opinions Of those who
have preceded him in his Office than the clear
and explicit enactments of the Code shows how
necessary it is to release the judicial mind in some
way other, from the oppressive servltude OF the
maxim " stare decisiS,'' which, rendered into plain
English means, to stick by old decisions, right OF
wrong And how is this to be done How is the
judiciary to be brought under the influence of pub
lie sentiment and made obedient to the public will
How are we to be certain that the statutes of the
Legislature, made by those who under the i'm
mediate control Of the people, will not be evaded oI
annulled by judicial Legislators Only by making
the Judges elective by the people. Once place the
Judiciary under the same influences as the Legis
lature and we will not see the one eiudng ami de
stroyug the DEGREES of the other. Law will be
more certain, for it will have more unity. Judges
will not attempt to interpret into ineliicacy the
statutes of Legislators; and legislators will moi
spend half their time in passing acts to correct the
DEGREES of judges.
There is class of politicians who contend strenu
ously for what they cali the independence OF the
Judiciary, and talk endlessy about what they term
the checks and balances of the constitution
But what do they mean by Independence and
by checks and baances9' Do they mean ':inde
pendence'' of the popular will" checks and bal
ances'' to popular opinion! If they do not, tl,eil
talk is sheer nonsense and if they do it is some
thing worse. Let such sophists learn that the only
way to make nation peaceful and happy within
and strong and powerful without is to give it unity
of splrlt-unlty of action. 1t is not by pting ont
department of the government against another
not by arraying one set of functionaries agains
another-that you can secure individual liberty Oh
national greatness. Give harmony and consenta-
neity to all parts of the government-make the
Judges as we'll as the executive and the legislative
derive their power from the people-and you will
have your laws more certain and your institution.
more stable. Not only this, but the force which
was before spent in struggles between the diiferen
principles of the government will be turned int
channels more conducive to the public welfare
The tins and the strength wasted in contentious
between opposing departments of the State will b'
spent in works that viii add to the good Of th'
whole whereas, the contentious now existing, tot
often result only in detriment to the community
and enure TO the benefit of but few individuals.