Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1865-08-15

JUDGE billions DECISION.

test case upon which many others "eic "e
ng, was yesterday morning decided Dl
Judge Dillon, whose opinion we publsi
below. II will be found to decide severa
new and important questions of Cons'hu
tional law, and will be read with Interest
by the bar and those who are interested IL
like questions:
Er parte Maggie Hammond. Dillon. j.
HiJeais corpus This is proceeding ny
habeas corpus by Maggie Hammond to test
the validity of her imprisonment and deten
tion by the Sheriff OF this county From
the plcadings and exhibits it appears that The
petitioner. with others, was proceeded against
under the "Vagrant Act chapter loj of the
Revision and chafnDd in proper form with
being common prostitute or disordcrly per-
son. with no visible business or calling, &C.
| The Justice of the Peace, III. Poiers, Esq,
| who examined the case, refused TO award a
jury, but upon the petitioners plea OF not
guilty, heard the evidence on both sides
and found thercupon that she was "a va
grant. and ordered that she give an under
taking in the sum Of 5000 with sufficient
| surety for good behavior for the term OF one
year, and that in default thereof she be com
mi,ted to the Jail of Scott county. Iowa.
until such security be found or until
she is discharged according to law.
| She having failed ~ give security,
the Sheriff returns to the writ OF
habeas corpus (Which at herinstance issued
and directed to NM that he holds her by
virtue of mittinns from Justice Peters,
which il annexed to his answerand is in due
| form Of law
wv AksLitioner cannot now claim that She
entitled 10 be discharged from custody,
because the q Vagrant Ac,,' Rev Chap. 1856;
Code Of 1851, Chap 2Oe, which was passed
prior to the present Constitution OF the
State, has been superseded by the Constitu
! ton and is in conflict with those provisions
of it which secure the right of tria by jury.
Sections ., 10, IL, and % of the Bill of Rights
are referred to, and scctionten mainly relied
upon in support OF this claim.
Section 10 of the Bill Of Rights is broader
and more liberal in favor OF the right OF
| trial by jury than that contained in any ni
the other State Constitutions. 1t provides
that I'm all criminal prosecutions and in cases
inroirtng the life or tt6ertyof IN tndiridunl, the
| accused shall have right to speedy and
pubic trial by an impartial jury &c. The
words in italics were not in the old Con
stitution and are peculiar to the present one
The Vagrant Act is too long to bc copied
~ foil /; but the following is synopsis of its
essc6eaal portions:
| Upon complaint on oath (Sec. 441t) the
magistrate issues his warrant tor the arrest
of iDe alleged vagrant land his ernnii1'atton
! (not ialj and tue complaint and warrant OF
arrest, shall be governed by the pro, !sions
Of the last chapter (chap. 1e4; ".occuray Il
Keep tie PEACE" AS nearly as practicable"
No power is given to the magistrate to
fine the vagrant single cent, or To oimprison
| Inr oisn ul., ,nx.sunnt 11a has No n.Wer q
punish His whole authority and power ar.
prescribed by Section 4,474, which is rs fol
lows: Ii it appear by the confession OF
such person, or by competent testimony
that such person is a vagrant, the magistrate
may require of such person an Undertaking:
| with sufficient surety, Tor good behavior, for
the term of one year thereafter II de-
| fault is made is giving the security the mag
| slrate may commit until it is given, but no
longer He is required (Sec. 4,4,5) ITO make
uI,. sign and file with the Clerk Of the Dis
trict Court record OF conviction, accom-
panied with the papers and the evidence
| which he is required to reduce TO writing
| and which record OF conviction Is, III the
District Court, (Scc 4,41V "presumptiveevi-
dence Of the facts therein contained until
disproved" The District Court-no jury
being contemplated or provided ior by the
and may discharge from the bond, il one has
| been given or from custody, II the party
| is IN lail Tor failure to give bond; or may
require surctics for good behavior or IN
It's discretion may bind out Il vagrant v no is
| minor until he or she is OF full age or n
OF age, may bind out such person to service
| for II term oi not more than one year ;-oi
| in its discretion may imprison the vagran'
in the county jail not exceeding six months
| (Secs. 4,4SO-l).
The question made bv counsel has never
been decided in this State, and its difficulty IL
only equallei by its importance. have
gwen the matter NO little examination ano
much reflection, and the conclusion To which
| have arrived, while think it To be the
correct one, is one upon which my mlnj
docs not rcpose with that clcarness and pod
itiveness that are satisfactory, ii not alwayS
attainable. The subject Is capable Of muet
el,b ration and perhaps requires il. p&
| pose, however, to state the results Of my coA
sidcration, without giving as fully as giil
the mental processes and line Of argument
which have led to the conclusion l have
| reached.
The proceeding authorized by the Nagranl
Act (Chap. ls5 oi Revision) II, within the
meaning Of Section ten Of the Bill of Rights
"a CRIMINAL prosecution"
Npgrancy is regarded and punished in Eng
lan0as an ottense against public police and
cconomy. IA Black. Com, 16y, 1909
And SO IT Is IN all or nearly all Of the States
OF tile Union. (See statutes Vi various States
reprinted in Archb. CIR. pr, and III. to Am
Ed. 6U9-129.l All OF these statutes differ
from ours in one most essential particular,
| VIZ that they authorize the Justice oi the
Peace or other interior magistrate 10 t,y and
PUNISH in the first instance, reServing, now
ever. to the accused the right OF appeal.
The American Statutes are, in their main
features, modelled after the English, and so
also Is ours except TINT in Iowa the inferior
Magistrate has the power to eIdntisae only
and discharge or require bond-not the
power to try, dstsrmins and pusssA. These
statutes give the officers Of the law great
power over the liberty Of individuals, and ii
our statute lbectiOn 4,57O) were literally
construed it would include many persons
not commonly or justly regarded as va
grants. To the honor of the courts ever
mindful and tender of the liberties OF accus-
| ed persona these statutes are strictly con
strued. Thus, says Pollock, g. b. (Exmrts,
Jones 10 Eng L. s. Eg. Rep. J2a.-l052)
I've are bound, when the liberty OF the
subject is concerned, tO take care that the
great powers which arc entrusted 70 Slagis-
tratcs Dy this ithe Vagrant) Act are not ex-
cseJed' See also The People vs.. Forbes
1 Park. Or. Rep. Gil.
Security against the abuse of such powera
| by inferior Magistrates consists in the writ
OF Aabsas corpus-a key placed by the con-
s,deratc humanity uf the English and Amer
kUkn laws, and by those laws al0ns, into the
hAnds Of every imprisoned person, however
\ Stumble, by which he may unlock the door
that bars and confines HIM, walk boldly
forth into the light of day and demand ol
right and just by favor from the highes,
courts IN the land . judicial and public in
quiry into the legality Of his coninsment
In further prO0f that vxgrAncy il treated
as an oilense by our statute there must be q
" complaint ON oath = " warrant Of arrest,
and 6y the District Court punisInse,4 there
for may be indlcted-all vi which character
ize eysosinl as distinguished from cica pro
Ceedings.
| (rhe State vs. Sterns, II Fost. iN.H.'
100, Ito, A. ID. 1861. When the cause is il
the District Court 1t is clear that " the liber
ty'sO of the accused is directly " involved
because II vagnncy is established, he may
be deprived Of his liberty nv heinu hoaind