Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1863-07-02

secure uniformity and correctness of decision IN respect
to all questions involving "rights OF persons and
rights of things" This il was supposed could be
complished by Court composed of three Judges
From the nature of the subject, in actions at lay and
Indictments where tie facts must be tried by jury. 1t
was seen be mpractcabe for the Supreme Court to
exercise original jurisdiction. Hence it was deemed
eypedeu that all actions and indictments should orig
mate in the lower Courts, where The facts can be found
TO PR sent to the Supreme CCur only questions OF
Law by way of appeal In suits in equity, where, al
though the facts sometimes complicated, the mode
of trial by the Court, it deemed expedien that
the proceedings should originate below and then be
brought up by appeal or removal after berg set Tor
hearing SO in respect to these remedies only appellate
| Jurisdiction is conferred.
There remained fourth distinct and important sub
iect of jurisdiction TO Wt the writ of HabeaS Corpus
cum cous0. From its Daure no complicated state OF
facts be presented that consideration presented
no objection 10 the grant Of original urs to the
Supreme Court While on the other hand all OF the
judges OF the Supreme and Superior Cours had power
to issue such wFi and decide upon the lawiuntss OF
the impressment in order to prevent conflict OF decl
sion aud utter confusion and chaos and to give uni
formity and to csions involving the lib
ery Of the Citizen the necessity OF comforting original
jurisdiction the Supreme Court to issue the writ and
decide the right pateut ard, if the Statute IN
question does not confer the power, no reason can be
assigned for the omission unless it was the opinion OF
the Legislature tina. the power would attach to the
Court as soon it was established incident of
its existence, upon the principles OF lie Common law
and Bill OF Rights.
The Legislature bad full power 1t was lis duty
there was patent object 10 establishing
the Supreme Court could not otherwise be fulfilled and
no objection to it. could be suggested. It follows that
the CoIr5 has the power either en- the ground that the
Statute confers it, the commission to do so is legls
atve declaration that The Court possesses the power as
incident to its existence.
On the able argument with which we have been IA
voed by Mr. Stony be called attention to the fact that
the act of Congress, 1789 establishing the Supreme
Court OF the United States used nearly the same
language the act of the Legislature establishing the
Supreme Court of this State and that in the construction
of the ac3 of Congress, the Supreme Ccut OF the Uni
ted States have decided thahe Court cannot issue the
writ of HG6sas Co pus except where the
writ is Incident to appellate Jurisdiction
That is true, and it seems to account for the general
impress ion which has prevailed 10 this State against
cations have been made to the Judges for writs OF
Habec Corpus during the last few months has directed
attention to this subject and closer and more se Us
invest cation than the subject had before received
suits in the conclusion that the Court has the power,
and that the impression which had prevail
is to be ascrbed to the circumstance that due weight
had not been given to the difference between tie two
Courts in regard to the from which jurisdiction
may be derived. The Supreme Court of the United
States derive jurisdiction from the principles of
the common law. Its jurisdiction must rest solely on
acts of Congress, and the power Of Congress to confer
jursdl< ton rests on the constitution Of the United
States 1t can have power except that which is
conferred by the constitution, ard by it the power to
fabsh Supreme Court is restricted to court of
appellate jurisdiction, except 10 affecting embas
sailors, &c Art. 3, sec. 2
The very of all this is the case in respect to
the Supreme Court of sbe State. 1t may derive juris
dicon from the principles Of the Comnon law. The
power OF the Legislature to confer jurisdiction is unm,
tied, aud there is why it should not deemed
e2pedieot rave established Supreme Court with full
original ia Ic;lOD with jurisdiction partly orr
ginal and partly appellate.
10 the Opinion OF Judge Marshal, e1 pa te Bollmau
1 Cranch 93, Curtis "a, full and critical exampa-
ton is made Of the act OF Congress- and be comes to the
conclusion tEat by It's true construction it would scon
fer the Supreme Court jurisdiction issue the writ
Of Ha6eas Corpus causa but for the fact it to
be construed in reference to the limited power of Con-
gress. Our act, on the contrary is to be construed in
reference to the unlimited power of the Legislature and
in this view the Opinion Of Judge Marshall strongly
supports the conclusion to which we have arrived.
Mr. Strong also cited the of Jones US. McLaur-
in, Jones 392, That sc5re taclas against ball.
and tie Court decide that it has not jurisdiction, be-
the there used is in effect action
of d. b. in Inspect to which the Court has only appel
late jurisdiction. The question we have before is
plainly GstineCishabe. The HaleGs Corpus cum cauSa
is totally distinct in its any action at law
proceeding in the nature OF action suit 10 eqai-
ty, or indictment, and is put grounds peculiar to
itself.
Cur conclusion is, that the Court has power 10 issue
wrs Of Rabed, Corpus, returnable to the Court, and
tEereupcn 10 Inquire of and decide the lawfuness
of and restraint put the liberty of citizen This
opinion does not affect the question of the jurisdiction
OF State Court where the arrest is justified the
tbority by COLOR of act of the Congress of the
Conf derate States. That question May b. the subject
OF future consideration.
r. NJ. PEARSON.