New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-08-07

do 40: And Judge Kane will admit that the power
they have in cases of such writs confined to the pre-
scripions OF the Constitution and acts OF Congress
The Common or unwrtien law gives no power TO the
Courts of the United States issue wits of habcis
corpus. The British statutes the great habeas corpus
act of Cromwell and the Commonwealth, the 81 Car,
en- q il of no force in this country, end we must
look entirely 70 the acts Of Congress for the power
and course of proceeding this writ. Then what Is
the law of habeas corpus for the United States
Courts mo law OF the United States, says Chief
Justice Marshall. in the case of Tobias Watkins, 3
Peerss Reports, 20ll prescroes the cases II Whics
this great writ shall b. issued the p0hrer Of ne
Court orcr the partV brought up by r. The term IS
used in the Constitution one which was well uu-
"derstood; and the judicial act authorizes this Cour;
10 issue the writ for the purpose Of inqurIng mo
"tke cause OF the commitment This general refer
ence" he continues, " 10 power which we are re-
quired TO exercise. pit0ut any precise dSfa'ioa Of
" that porer. imposes the necessity OF making
some inquiries into its The writ Of habess cor
opus il a high Trerogative writ known to the Com
"mOn Law, the great object OF which il the libers-
"tion of those who may be imprisoned without sufi-
"cient cause. II IL in the nature of writ of error 70
examine the legality of the commitment So far
Of ChiefJustiee Marshall the nature OF this writ.
Now then we have no statutory details by acts OF
Congress of the mode Of proceeding on this writ and
the statutes Of the States furnish guide TO the
Cont. Of the United States unless on the general
ure of the writ If adopted in practice and II tie ha
beas corpus act of Pennsylvania were adopted as part
al
found IN II which could in the remotest manner sane
ton the course adopted by Judge Kane in Mr.. VIII
hanson case But the act of Pennsylvania ia no
pant Of the law Of Congress and we must resort 10 the
acts of Congress and the Common Law, as admitted
By the English decisions and opinions as tue rule 10
guide us In our practice. The acts Of Congress
Chief Justice Marshall said, q" give no precise iefO
L" ton Of the power of the Courts in case of hsbeas
corpus The act Of the cath OF September, l7s9,
Oh 90 sec a. only saws " that the before mentioned
- ~
20 issue wits of scire acias habeas corpus, and all
other WRITE" &c. This is all TIE instruction or
.bori;y given on the subject. Then where did Judge
Kane yet his authority to commit Mr.. " liamsOn tor
contempt 10 tie writ Of habess corpus unless we look
10 the Common or unwrluen law OF the land, which Is
to be found Blackstone informs us, in the decisions
and opinions OF the Courts But Judge Kane can
find oihing in that great body Of iaT 10 JUSTIFY his
commitment of Mr.. Williamson.
Let us. as shortly as possible, inquire what is the
common law on the subject OF the power OF The highest
and most pOwe fu Courts OF England from which we
inherit whatever OF the common law N force in this
country. And let us first Inquire OF the duty OF the
Courts in cases OF returns 20 wTts OF habeas corpus
Bacon's AhTilgment, high authority, informs that
for false return 20 habeas corpus there is rcgu
larly DO remedy against the officer but action
the case by the party aggieyed and an Information
or Indictment az the suit of the King
"a Bac Abr. 1871, Civilian Ed. by DOdd, for which
he cites Sakeds Reports 3i5-35s.
And again: " But il has been holden that If TAILOR
briggs his habeas corpus and is in good health. an
attachment will lie against bm, secus if the habeas
corpus was brought by another BAG. Abr. 49,
but for which he cites no authority lhls- exception
lessunng il TO be law the lawyers say proves the
rule fox the cOroary is that if the party himself does
not bring the writ the false return of the ja0r that
bis prisoner sick, although he was in good health
must be taken for true by the Court and the party
would be put to his action indictment for perjury
Now in the case of Williams on the abducted ne
grces did not bring the writ they had made COM
plant of their liberty being resrained but the writ
wes issued at the instance OF Col Wheeler and not
for their benefit but for his own. In such case the
above case saws "secus' that is the other handl
if the Habeas Corpus is brought by Col Wheeler aud
not BY the negroes the false return must be adopted
by the Cowt, although he defendant knew that they
were not "lane uid but werei good health. And
Lord Holt in the case in Salkeld, where a non-con-
formst wi o had been imprisoned for coming rs the
odious law OF England then stood, within FIVE miles Of
a borough that sends burgesses 10 Parliament, was
brought before him on q Habeas Corpus, said he must
be discharged, because ii, did not appear by the re-
turn that London sends burgesses to Parliament,
Hougk all the WOrld kn0tcS they do"
Again. Bac. Abr. l33 says that the party to whom
hsbeas corpus issues "must return the truth of the
whole matter under peril OF an action" Thus the
Peril is of an action but not Judge Kane LAYS
down the law under peril of commitment for con-
tempt Of Court.
SO the same book again says Although it seems
to be agreed that one IN any case can controvert
the truth OF the return to habeas corpus plead or
suggest any matter rcpugnant to ityet Il has been
held that man may confess and avoid such return
by admitting the truth of the matters contained in it,
and suggesting others not repugnant, &C., BAG.
Abr. l35.
But what seems 10 me TO settle the question of the
power and duty of the Courts, according TO the COM
law in cases of returns to wrs Of habeas corpus
is what said by all the Judges of England on a
great and solemn occasion.
IN the H.bess Corpus Act Ca Car ch ~ only pro-
fieff . M
mser bill was passed through the Commons or issuing the
writ all OF detention and restraint Of liberty When
bill the Lords they hesitated and prop anded
tain questions 10 the Judges as they had the night to do Tor
their instruction upon this important OF these grave
inquiries the 10th was Whether Ia all whatsoever the
Judges bound BY the facts forth the 70
wit Of hsbas corpus that they discharge the person
brought before them, although il shodd appear
testify to the Judges, by the clesrest and undoubted
brought up Is restrained of h liberty By the most
able means aud in direct violation Of Gw uijus;ics"
In answer, the judges senetim gave their opinions,
from which we select those Of Mr. Justice Wimot,
who said: " That, by The ceArest and most undOubted
proof he means the verdict Of jury, or judgment,
or demurrer, or otherwise in action for O false re-
turn and in the facts averred in return TO the
HGleas Corpus are sufficient IN point of law to jus
tify the restraint be II Of opinion that the Court or
~ Judge before whom such writ is returnahe cannot
trv he facts dUerrc8 such return By arIdarrs a.
any proceeding grated the return to the writ OF
Habess Corpus; and of Baron Adams who said;
- That If On action was brought for false return
made TO a Habeas Corpus, and therein the return
should be Jolsifcd By judgment upon rerdiet, de-
murrer or otherwise, the judges might thereupon
issue an alias Isbeas Corpus and upon that dis
charge the party; but that in all cases whatsoever
when the matter comes before the Court sngly upon
the return made TO the Habeas Corpus If that return
contains sufficient and justfaole csuse Of restraint
the Judges must determine upon the cause 0s there
GJpc0rs, and cannot hear any proof 10 e0atradic-
ton 10 a. but so bound by the facts set forth
therein, though they be false in fact and the party
in truth restrained Of his liberty by the most un
"rantable means and in direct violation Of law and
"justice they cannot discharge him, but he Is driven