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

Opinion of chaef Justice Pearson,
In the Supreme Court of N. c., on the Jurisdiction
/ of that Court in OF Habeas Corpus.
At the beginning of the term the Judges REQUESTED
the members OF the Bar to investigate the eject and
/ give their opinions and their fer them pro Of
con- on this question Has the Court jurisdiction Il
issue writ tf abeds Corpus cum causd, returnable u
the Court, ard thereupon Inquire of the awfaines
of any restraint pat iii he liberty OF citizen W.
have been !ayned With The opinions OF Messrs. Moore
and Winston in iavor of tie jurisdiction, and of Mr.
Strong against it. aid the subject has been fully dis
cussed. After giving it due consideration, are G
| opinion hat the Ocust bas jurisdiction.
| This conclusion is put Ga two grounds:
| lst. The Court las jurisdiction by common law -
The laws of our State rest for foundation upon the
mon law of England 1t is admitted principle of the
commonlaw that every Court OF record ofsuperor ia
rsdction bss power Issue the writ OF HdbeQs Coz p
cum causo which is the great writ o: right for the pro-
lection of tie ib rites OF the citizen This power is
an incident to every Superior Court OF Record" Will
son, l72; 3 Bar Abr, title Habeas Corpus notes Ii
arises fror the obligations of the King to protect all oil
his subjects the enjoyments OF their right OF personal
liberty and for tbs purpose to Inquire by bis Courts
to the condition OF any of MS subjects AS tits duty
of the King in gard to any of bis subjects coDters
every Court oil Record of superior jurisdiction the pow
to issue the writ incident to Its existence it fol-
lows that the duty Of the State Of North CarolGa 10
regard to its citizens must confer like power on all OF
its Courts of Record superior lrisdiction, incl
dent to their existence for surely under Constitu
tion and Bill of Rights, in which is reiterated the great
principle OF Magma Charfd every free restrained
of his liberty is entitled to remedy to inquire into the
awunees thereof and to the same If unlawful,
and such remedy ought not to be denied delayed 49,
The personal liberty OF citizens must be equally as
we'll protected aud secured the personal liberty OF
the subjects OF the King OF England.
Our Constitution vests the legislative power in a
General Assembly, the Executive power in Governor,
and the Supreme Sldicial power IN Supreme Court;
&L4R@ Aoo $rF hon
any words to that effect, necessarily and incident
to its existence by force of the Bill of Rights of the
Constitution and the principles OF tie cjmmon law, in
vests it with power to inquire by means OF this great
Writ Of Right in the lawuDess OF any restraint up
on the liberty OF free man, and if, 10 establishing
Supreme Court, the Legislature had in EXPIRE terms
denied the Court the power to issue this Writ and pro-
hbted it from 20 doing, such prohibition would have
been void and OF fleet
Our conclusion that the Supreme Ccurt has power to
issue the Writ is confirmed by consideration of the
provisions Of the Habe"s Corpus Act Rev. Code,
Chap. So. 1t is taken from two English Statutes 81
Charles III and sc Geo. Ill We have that all OF
the Superior Courts of Fog aud had power BY the COM
law to Issue the Writ, but the Courts could only
act in term time and free man mi ht be uniawfuy
imprisoned in vacation time, so the remedy would be
delayed and to provide the means of speedy inquiry
into the cause of Imprisonment, it s enacted by 81
Chas H. that every Judge of all the Courts OF superior
jurisdiction, the application of any person imprson
ed upon @ criminal charge unless after convlcton)
shall in tie vacation time, under penalty OF five hun
dred pounds, grant Writ of Habeas Corpus, eurna-
BILE without delay ard By Sc Geo. III it enacted that
all of the Judges SHALL in the vacation time under
like penalty 10 the grant the Writ on the
application of any person imprisoned restrained of
bis liberty for airy cause other than criminal charge.
So in England any person, whether imprisoned on
criminal charge or restrained OF his liberty for any
other cause, had right during the sitting of the
Courts by application to the Court and curing the
cation by application to any one OF the Judges, to have
the cause of bis teirg imprisoned or restrained OF bis
liberty inquired into without delay
Our Habens Corpus Act, as bsore Observed is taken
from these two English Statutes, and not only gives
power to- but acquires, under penalty of twenty-five
hundred dollars any Judge Of the Supreme Superior
Courts in the UGcGt1on time, to issue the Writ a
beas Corpus the application OF any person imPrison
ed criminal charge otherwise restrained of his
liberty.
1t is manifest that this act pre-supp0ees that both
the Supreme and the Superior Courts had power In
term time to issue the Writ and the intention was to
extend the remedy to the vacation. Ihsmust' be de-
caration by TIE Legis AZURE of the fact that both the
Supreme and the Superior Courts had power to Issue
the Writ, or Ee must adopt the absurdty, that the
Legislature intended to give to single judge 10 yaca
ton power which the Court did not possess in term
time, and ONLY account for the fact that while
giving this power to the Judges vacation the Ley
lsature did not in press words confr Ike power on
the Courts upon the grourd that it was taken for
granted that Courts, like those in England already
had the power Tor under the unrestricted Legislative
power OF the General Assembly, it not only bad the
power bat it its duty by the Constitution and Bill
of Rights to confer this power both the Supreme
and Superior Courts, il the Courts did not already
possess it.
I'd. Suppose for the sake CT argument it was neces
ary that the power should be conferred the
Court by STATUTE of opinion at it is conferred
BY the Act establishing the Court. Rev. Code, chap
er 33, sec. &. 1t is in these words " The Courts |
hall have power to hear and determine all questions of
aw brought before it by appeal otherwise from
Superior Court OF Law, and to hear and determine all
in equity brought before it by appeal removal
rom Court of Equity, and shall have original and
Exclusive jurisdiction in repeating letters patent and
hall also have power to issue wrts of Certioyar scre
acias, Habeas Corpus, Mandamus, and all other writs
which may be proper and necessary for the exercise of
Is jurisdiction and agreeable 10 the principles and
sages OF law
There are several kinds of writs of Habeas Co pus
Derior to enable the Court to exercise its uris
lotion, for instance ad testfcandum-to bring man
ut efail to be witness; and the great Writ of Right
fGbed Corpus cdsd, to bring any citizen alleged
be wrongfuy imprisoned restrained of his liberty
efoe the Court with the of his arrest and deten
ion that the matter may be inquired of and the party
ct at liberty if Imprisoned against law This proceed.
Dg is original and in nowse connected with or depend
mt any other matter which the Court has iu-
isdiction.
The question is Does the Act restrict the power of
he Court to Writs OF the inferior Sort does it con-
or power to issue the great Writ of Right?
In support of the first construction it is urged that
be words "aH other acrls which may be proper and ne
tor the exercise of its jurisdiction" show that
he writs before specified were intended to be Of the
anne kind and must have the effect Of restricting the
oWer to writs OF the inferior Sort Several cOnsdera
ions are urged in reply In strict grammatical con-
tructon the restrictive words (Which may be proper
nd necessary for the exercise of its jurisdiction refer
A. Ia =Ia~A