Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1855-10-20

htion Of Pass@oys Williamson for re,1t Of h.
beas corpus.
KNOX, J. l do not concur in the opinion Of the
majority of this Court refusing the writ of habeas
corpus, and shall state the reasons why, in my
Judgment, the writ should be granted.
This application was made to the Court whilst
holding special session at Bedford, on the 18th
day of August, and upon an intimation from the
counsel that in case the Court had any difficulty
upon the question of awarding the writ, they would
like to be heard, Thursday, the 10th of August,
was fixed for the hearing. On that day an argu-
mont was made, by Mcssrs Meredith and Gilpn,
in favour of the allowance of the writ
may well remark here that, upon the presen-
tation of the petition, was in favor of awarding
the habeas corpus greatly preerring that the right
Of the petitioner to Ills discharge should be deter
mined upon the return of the writ. If this course
had been adopted, we should have had the views
of counsel in opposition of the discharge, and,
moreover, if necessary, we could, after the return,
have examined into the facts of the case.
l am in favour of granting this writ, first, be-
cause believe the petitioner has the right to de-
mapd it at our hands. From the time OF Magma
Charta the writ of habeas corpus has been eonsid-
cred writ of right, which every person is entitled
to er nlerito jistitd. "Bu the benefit of it," says
Chancellor Kent, twas in great degree cluded in
England prior to the statute Of Charles H., as the
Judges only awarded it in term time, and they as
sumed discretionary potcer Of d~aTdtRg or re-
fuSing it."-2 Kent Commentaries, 26 And Bacon
says, Notwithstanding the witt of habeas corpus
be wilt of right, and what the subject is entitled
to, yet the provision of the law herein being in
great measure cluded by the Judge as being on
" enabled to award it in term time as also by an
iIadoined notion of the Hages that they had dis
cretionarv mower of granting or refusing it," the
act of 81 Charles II. was made for remedy there
of.
l am aware that, both in England and this coun-
trv since the passage of the statute of Charles H.
LotI clo ri ra1 thot
the prisoner must be remanded it was improper
20 grant the writ, bnt know of no such construc-
ton upon our act of 18th February 1885. The
people of the United States have ever regarded
the priyileg, of the habeas corpus as most in
valuable right to secure which an introduction
against it's suspension, unless when, in cases of
rebellion or invasion, the public safety may require
it." is inserted in the organic law Of the Union
and in ad iition to our act of 1885, which is broad
er and more comprehensive than the English stat
ute provision in terms like that in the Constitu-
ton of the United States is to be found in the
Constitution of this State
1t is difficult to conceive how words could he
more imperative in their character than those to
| be found in statute of '85. The Judges named
are authorized and required either in vacation or
term time upon the due application OF any person
committed or detained for uny criminal or suppo-
sed criminal matter except for treason or felony,
confined restrained of his or her liberty, un-
der any colour pretence whatsoever, to award
and grant habeas corpus, directed to the person
persons in whose custody the prisoner Is detain-
ed, returnable Immediately. And the refusal or
neglect to- grant the writ required by the act to be
granted renders the Judge neglectng or refu-
sing liable to the penalty of three hundred pounds.
suppose no one will doubt the power of the
Legislature to require this writ to BE issued by the
Judges of the Commonwealth. And it Is tolera-
bly, plain that where, in express words, Il certain
thing is directed to be done, to which is added
penalty for not doing it, discretion is to be used
in obeying the mandate.
The English statute confined the penalty to
neglect or refusal to grant the writ in vacation
time and from this discretionary power to refuse
it in term time was inferred, but an Act OF Assem-
by does not limit the penalty to refusal in vGca-
cation, but is sufficiently comprehensive to embrace
neglect refusal in vacation or in term time.
have looked in vain through the numerous ca
ses reported in this State to find that the writ was
ever denied to one whose application was IN due
form, ard whose case was within the purylew OF
the Act of Assembly.
In Rcspubica VS.. Arnold, Yates, 263, the writ
was refused because tho petitioner was not restrain
cd of his liberty, and therefore not within the
terms of the statute; and in ex parte Lawrence,
9TH Bnney, 304, it was held that the Act OF AS
sembly did not oblige the Court to grant habeas
corpus where the case had already been heard up
on the same evidence by another Court. Without
going into an examination Of the numerous cases
where the writ has been allowed, believe 1t can
be safely affirmed that the denial of the writ in a
case like the present is without a precedent and
contrary to the uniform practice OF the bench, and
against the universal understanding of the pro
fession and the peoples but what is worse still, 1t
appears to me to 5e in direct violation OF law 1T
self
1t may be said that the law never requires a
useless thing to be DONE Grant it, But how can
it be determined to be useless until the case is
heard? Whether there is ground for the writ is
to be determined according to law, and the law re-
auires that the determination should follow, not
precede the return.
An application was made to the Chief Justice OF
this Court for writ of habeas corpus previous to
the application now being considered. The writ
was refused and it was stated in the opinion that
the counsel for the petitioner waived the right to
the writ, or did, not desire it to be issued if the
Chief Justice should be of the opinion that there
was not sufficient cause set forth in the petition for
the prisoners discharge But this can in nowise
proiudice the petitioners right to the writ which
he now demands. Even had tho writ been award