Bradford reporter. [volume] (Towanda, Pa.) 1844-1884, 1855-09-29

qaturoap alorninp, September 90. 1855,
Opinion of Judge Knox.
Tn the matter of the Petition of Passmore Will
-" hanson for Writ of Habeas Corpus.

Kvov il do not concur in the opinion of
ii, majority Of this court, refusing the writ OF
G'L.,< rygrs, and shall state the reasons why,
IN nv irdrment the writ should be granted.
Nils am9lication was made to the court whilst
bollr., sDpcial session at Bedford, on the
Iorb Of August, and upon an ntination from
tlo counsel that in case the court had any diff
f,pIty upon the question Of awarding the writ,
+rrv would Eke to be heard. Thursday, the
lfrh Of August, was fixed for the hearing. On
rb9r day all argument was made, by Messrs
Meredith and GiIpu, i'll favor OF the allowance
Of tie writ.
| may as well remark here, that upon the
rrcsentation of the petition | was in favor of
awarding the h1Jc0s corpus, greatly preferring
that the right of the petitioner to his discharge
should be determined on the return Of the writ
If this course had been adopted, we should have
had the views of counsel in opposition to the
discharge, and moreover, if Necessary, we
could, after the return, have examined into the
facts Of case.
| am in favor Of granting this writ, first, be
caus, believe the petitioner has the right to
demand il at orr hands From the time Of
Nagna Charta the writ Of haJcaS corpns has
been considered writ Of right, which every
rcr.On is entitled to cr mcrlo j:IStjcia
But the benefit Gift says Chancellor Kent
vas in 4 great degree cludeI in England prior
TO the statute Of Charles H., as the Judges
only awarded it in term time, and they assum-
ii discretionary potrer Of 0tCardjAg or rcfus-
n- j." Kent Commentaries, 26 And Ba-
c5a SAYS Notwithstanding the writ Of hgJeeS
a..pps be 4 writ of right, and what the subject
IS entitled to, yet the provision Of the law here
in being in q great measure elutlcd by the
judges being only enabled TO award it i'll term
time, as also by an imagined Rotj0n Of tie JHdlgcs
that they had discretionary power Of grant
rg or refusing it,' the act Of 81, Charles II,
vas made for remedy thereof
am aware that, both in England and in
this country, since the passage OF the statute
G Charles H., it has been held that where it
clearly appeared that the prisoner must be re-
maa'cd, it was Improper to grant tie writ, but
know of 10 such construction upon our act
Of 18th February l785 The people of these
JItcd States have ever regarded the privilege
Of the hticas cGrfas as 4 most invaluable right,
to secure which an interdiction against its Sus-
pension, unless when in cases Of rebellion or
iarasion the public safety may require it," is
Inserted in tie organic law Of the Union and,
in addition to or act OF 1888, which is broad
ur and more comprehensive t.au the Engl;sh
statute a provision in terms Ike that in the
Constitution Of the United States is to he found
m the Constitution Of this State.
1t is difficult to conceive how words could be
more imperative in their character than those
Ia, -, .,r' -
named are authorized ard required, either in
yacation or in term time, upon the due appli-
cation of any person committed or detained for
ANY criminal Or supposed criminal matter cX-
II oIt for treason or felony or confined or re-
II strained Of his or her liberty unjIcr any color
rpreteHce whatsoever, to award and grant Il
II 57leaS corpVS directed to the person or persons
IN whose custody the prisoner is detained, re-
I turuablc Immediately. And the refusal or ne
-ect to grant the writ required by the act to
III granted renders the Judge 50 neglectin% or
rolsing, liable to the penalty of three hundred
III bounds
suppose no one will doubt the power of
the legislature to require this writ to be issued
# the Judges Of the Commonwealth And it
III 'ocrabr plain that where in express words,
Which Is added penalty for not doing it,
no discretion is to be used in obeying the man
# C-t.
lie English statute confined the penalty to
neglect OF refusal to grant the writ in yaca-
ol time, and from this discretionary power
refuse it in term time was inferred, but our
1, ol assembly does not limit the penalty to a
'".%'i N vacation, but it is sufficiently COM
..1i,ye 10 embrace neglect or refusal in va
.oa or in term tine
lAaTe looked in vain through the numerous
reported i'll this state to find that tie
wa was ever denied to one whose application
'> 1 due form, and whose case was within
,E'.ew Of the act Of Assembly,
IL iePnbl!ca ogi. Arnold 3 Yates, 2G3, the
I was refused because the petitioner was not
""aed OF his liberty, and therefore, not
,1u 'he terms Of the statute and in cr Partc
renee, 9TH BinnCy, 304, it was held that
a,' OF Assembly did not ohIige the court to
"fatttS corPrs where the case had al
.'eh heard upon the same evidence by
,.Sr court. W.tloat Go;ag into an exam
~ Vi The numerous cases where the writ
'gh allowed, | believe it can be safely
uiat the denial Of the writ in case
present Is without precedent. and
"',! 10 the uniform practice of the bench,
"oe''at the universal understanding Of the
a and the people; but what is worse
m sNcarS to me to be in direct violation
!" LAW itself
'@y be said that the law never requires
,.., H.!'S 10 be done. Grant it. But
| 1t DC determined to be useless until
II uz.I y heard ! Whether there is ground
s,1 I'Il II IS to be determined according to
s. bon ..o,,ie ''e law requires that the dcternlina-
g,'.H rH lo'.ow, not precede the return.
GPug@.on tt, was made to the chief justice
"a t,o ".' Ior a writ Of haIcas corTrs prcyi-
v.i, % application now being considered
Liza. -, US refused, and it was stated in the
'~' Tue counsel ior the petitioner wniy-