New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-03-05

stances under which the courts may punish
persons guilty Of contempt of their author
ity. 1.-THE habeas corpus is an order in
writing, issued in the name of the State. by
court of. competent jurisdictiOn," etc.
C. p. 79l. What is . court of competent
jurisdiction! District judges shall have
the right Of granting writs Of hateas cor
of their respective jurisdictions, except in
the case of the absence of the Judge from
the district, his interest in the subject mat
ter, or his disability to act. To understand
this matter thoroughly it should be pre-
mised that the writ of habeas corpus is Is
old IS Magma Charta, which provides that
no freeman shall be taken or imprisoned
unless by lawful judgment of his peers,
or the law of the land" 1t was first ap.
piled for to the Court of Kings Bench
in the seventeenth century, BY five English
grew out of the arbitrary exercise Of power
on the part of the King. "From the earli-
est records of the English law no freeman
could be detained in prison, except upon
q criminal charge, or conviction, or for Q
civil debt" Hal. Con. History, p 500, Oh.
xiii. Questions arose in the reign of
Charles II. a. to the jurisdiction Of the
courts with reference to this writ, which
we're put to rest by, statute of S.,
power Of issuing the writ in vacation, and
to all Judges of the different courts of
the realm. This ample remedy grew neces-
ssrlly out of the fact that the right
to personal liberty did not depend on the
statute, although protected by several,
and was the birthright of every freeman.
The writ of habeas corpus, therefore, had
its origin in the common law itself. The
practical benefits inherent IN it were ma
terially obstructed by the phraseology of
the statute first passed in the reign OF
were required to embsdy the words, '.per
speciale n,andatum regis" This difficulty
was surmounted in 1879, after which the
writ could be issued by any court of record
or Judge thereof. CoOley's Con. Linn, p.
344. Now it is exactly in this form that it
has come down to us, with slight mOditica-
tions The constitution Of the United States,
article one, section nine. paragraph two. de.
clares that "the privilege of the writ of ha-
beas corpus Gust as it came from Englandl
shall not be suspended unless in case OF
rebellion or invasion the public safety may
require it," Article seven of the constitu.
ton of this State declares that ",he privi-
lege of the writ of habeas corpus shall not
be suspended" If it can not be suspended.
can it be taken away without express law
Chief Justice Cooley says that ''even where
lin the Statesl statutes have been passed
making specific provisions for particular
cases, it is believed that in no case has there
been any intention to restrict the remedy
and make it less broad that it was at the
common law" See Con. Linn, p. 3E. l
am totally at a loss to understand how
this old English writ. one used for such
variety of purposes, from the remotest an
tiouity can be regarded and classified by
anv one as criminal proceeding. 1t is in
eyerv possible sense civil proceeding,
characterized through successive ages as
the palladium of liberty. When We rec0l-
lect that it originally issued only from the
Court of Kings Bench, and that finally 1t
found it's way into every court Of record in
ENGLAND, owing to the inauguration of per-
sonal liberty and the gradually waning
mower of the crown. When it is under
stood that it reached this continent with
all the vigor it had there acquired, it is not
in nv power to conceive how, in this land
of boasted liberty, it has become limited in
it's availability to it's historical Importance
during the seventeenth century:
1t is the more impossible to adopt such q
theory respecting this venerable and sacra-
mental writ when we see 1t declared, In the
eighty third article of the State cOnstltu-
tiOn. that the Fourth, Fifth, Sixth and
Seventh District Courts shall have exclu-
awe jurisdiction in all civil cases. ex'
cent probate, and such further Jurisdiction
as NAV be conferred on them. l have
stated that the writ of habeas corpus has
come down to us from England with but
slight notifications. The changes have not
been of an essential nature, but, such as
thew are, tended to make its provisions
more stringent, and to render the security,
which it gives to liberty more certain and
available. From it's earliest existence IN
the common law, and throughout Its estao'
Ishment by statute, it has always been re-
garded az a writ of right, as the people
writ. and for that reason has been ana
trust ever will be maintained by them with
sleepless fidelity, as their best protection
against the exercise of an unautnofizeo
power in all matters affecting their liberties
Ia every instance in which commlttin ma
eistrate clearly trauscends his rightful law
full authority, and thereby ventures TO de
prive person of his liberty. it 10 the out,
Of the courts OF competent jurlsdlction u
Grant the writ. 1t is other wise when ~
has acted under the law which 90 10
consider has been done in this case. -,
regret to be obliged to come in conflict VIII
an officer who has important duties TO per
form. and who, no doubt, does so under
sense of duty, but must assert what deen
to be the law.