New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-02-21

BlacknSOre, / BuIr., QUIZ H. 'b' DToWn, H. VS..
Brown, 8, I. X. o. X. We. Remnant, 5, Il r. 1859,
Leach $751; r. vs.. York, 5, Barn. 1854 Millers Gaze
The Gaze most resembling the present as to ts point
that Of the ex parte Besset t62 Is, ASH which had
not seen wi en- granted this writ Of habeas corpus
NV attention was first drawn to it by the learned Chief
Justice of he Queens Bench, case which was not
under the notice Of the Court the Application to them
for tie prisoners discharge nor in fac' was the point
raised at all under their consideration.
1t appears by that d at one Basel was brought
IN on on habes corpus and the return showed tba he
Has committed by war art from the LORD Mayor OF
London, under TIE authority Of the British statute
ard Vic cap. u.s. which wac passed TO give ehect 10
convention between Great Britain and France close
" resembling that between Great Britain and the
United States The objection taken to the commitment
WAS that il concluded F" and here safely kept uutl ne
shall be discharged by due course OF law. Inc au-
thoity given by tie act was TO commit me Eeisoh 70
accused 10 JAIL Il ere to remain ubiil delivered pur-
suaIt TO such IeQuisi'ion Aforesaid Inc court
held the objection TO be fatal and discharged the prs
oner. 80,
Our statute directs that the Judge or Justice oil the
Peace shall bis warrant for the commitment OF
the person charged to tie proper jail there to be
r,manded until such surrender be made, or until snch
person be discharged by due course OF law. Uness
1t be held that tie latter words include or are
equivalent to tie former, this Gaze cannot lie dislln'
gnished from tnat Of eE pdrte Besset. But we are
bound to give effect to every word in the act and 1t Is
100 obvious 10 require argument, that the Legislature
meant provide for the surrender Of tie prisoner and
for lis discharge, If bis surrender was not duly re-
quired with that view they made the double prosi-
tion-some part Of which tas been overlooked and
omitted in the warrant. l consider the warrant Of
commitment defective on this ground also.
The rule of the Court of Queens Bench, however,
which is returned TO AZ one Of the causes OF the
prisoners detention is free from every objection Of
Ills character; and the Court had authority to make
such rule it affords a complete answer to tie appca-
ton for tie prisoners, discharge unless upon the
broader questions raired which involve the discussion
Of prnci les of the highest character. But tEs rule
ia objected to as being beyond the power OF the Court
and enter somewhat unwilllngly, upon its consider
ltion We are in effect called upon TO review ana
eupersede the action Of Cou Of coordinate JuIisoic
ton aud IL appellate but sn ordinary character
But we have 10 alternative, for tie prisoner has
rght to the benefit of opinion if it hould be In bis
favor.
There can be no doubt as to the authority of the
CouIl hen prisoner charged With felony. Is brought
before them on wit Ut habeas corpus, 10 look not
merely a, the commitment but also at the deposiohs,
before they either bail discharge him. III order 10 see
whether there il sufficient evidence TO deiain nm III
clstody and it is said in x. ys Hover, Leach; "Ihe
court in such never gave aJudsIaent wbetherthe
facts amount 10 felony or not, but merely whether
enough il charged to justify the detention OF the pIl=o-
ner, and put him upon his thai.
The law is thus stated in X. agt Marks East, l5I.
Though tie warrant a commitment be Informal,
yet upOn the dispositions returned, The COaf see That
4 fel has been cOlllltcu hIu tIhl lutIc
soDabs ground OF charge against the prisoner they
" i'll not bail but remand him. The same rule applies
with reepect tilo the law ard the Tact; ublsts We
see room to dJUbt tho truth OF The fact charged, the
pTsDer must be remandeJ aid the same consequence
Oll.ws, uI lees reason To DOUBT whetuer the
fact charged nsiitute any oense within tie 10 W.
The same puu,il lie il affirmed III Pdrte Page, ard
in H. agt. GOrdon and analogous case was followed
Smith a b aud a, 56S and So, Q B 49, II and n.
3Ji, do. 22I.
Ttese authorities to which it wond be easy to add
many ott ers conclusiyey show that the course Toll
by the Court Of Queens Bench ID wsrraned by pEiu-
ii he and authority, wherein the case Is one within
Ih.ir ordinary juiisdc,i0n.
Tie effect OF the rule in question il either merely 10
reuned The prisoner tie magistrates wnrrnt or 10
cou.ni. ii n 10y tie authority OF the Court alone.
Alter lopg and most anxious confederation, have
fmed the opinion that the rule il manaiuable ia
either view. l have already given my reasons for
thinking tie warrant defective and il the prisoner be
remnded exclusively THAT he should be Oh charged
Tie rule does profess to amend the warrant, and
therefore the imprisonment rests Oh the inherent au
thority of the Court alone.
ThIs point INT rits full examination. We have the
advantage Of tie decision already mentioned IN the
cas- Of Ct parte Besset, which, US have remarked,
was Do adyertd 10 by any one concerned Ia the mat
ie' until after the wiz by which the prisoner Is now
before WAS Issued.
Tie British statute and z Vic, CHI IS TO which
nave before reietrcd upon u reqUlsliiOn from the
French SOVEREIGN within the terms Of the Convention
or through either OF the principal Secretaries OF State
or some 9th or hah iunetionacs, by warrant TO signify
that such equiriOn had be. made and therefore II
sba be- lawful for any Justice OF tie Peace, or other
perron having power 10 commit for trial persons ac
cused Of cups against tie laws Of that portion OF her
Mniesty's domipions in Which such supposed offender
shall BE- found, 10 examine upon oath any person or
touching The truth Of such charges and upon
nh evidence ~ according 10 toe laws OF that part OF
her Majesty dOnIinons as would Justify the appre-
hensou and cOnmt for Trial Of the person so accuse
ftLe crime OF witch he sbe shall be accused bad
been there committed iJ shall be lawful for such jus
H. Of the Peace other person having power TO COM
nit IA aforesuid 10 issue bis warrant for the apprehen
non OF such person. and also 10 commit the peron so
accused to JAIL there to relnnn until delivered, pur-
suant 10 such requsiiion az Aforesaid.
Upon this statute Besset WIS committed, and IN en-
deavoing 10 sustain the commitment counsel suggested
that the Court would look into the depositiUDs on
wLich tie warrant WAS granted, and Ii they showed
crime had been committed oud remand the prisoner
To which Wightmgn j. replied THAT could only be
wher crime appeae ed for fch tIiAl MI ht he in q
country" Lord Denman said: 1.-The deposi'lon was
nothing 10 US unless within the statute and Coerdge
j. asked: 4" Does the statute give any power OF the
kind to us 7" And IN giving judgment TO discharge
the pI.ober Lord Depnir, atcoraDgto the report In
The JurtSt said: Neither this Court nor the Jaer
in whose custody the prisoner Is brought before U.s.
hiss any power over that incigidual except what Is
given by the recent act Of Pas amept. ana the war
rant Of commitment has been drawn up IN such
manner Us to deprive these parties Of any power to
detain hin. The Court has been requested 70 remand
the prisoner becaute it is alleged that lie has been
guilty of some crime but the Court knows nothing OF
apy crime unless it is brought before by the war
rant or should rather ray have no authority OF
the Ritd in such case. II We could have acted In
the manner suggested the statute would have been
unnecessary"
Unless there be difference between the Britlsn ACT
ond our own plcent 20 create solid distinction this
case is, In my oliuion, decisive. And perceive no
difference worthy of notice, except that IN the British
statute Justices Of the Peace and other persons having
power TO commit for trial persons accused for crme
Id 10 fula The fanlnQA Nnlnied