The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-02-20
TEXT OF OPINION
In GIBBONS CASE
[Concluded from Page 81


Johns. 423: / Hill 170; 5 Iredell, 1897
wedell 153; Sandf. 724; Carter, 16o
l Blackf. 166: 25 Miss. 1886; 2 Wheeler's
Criminal Cases, p. L.. IA Ad. & Ellis,
55S. II may be also noticed that this
proceeding Is not entitled in the con-
tested election case, but takes separ-
ate title and number on the criminal
side of the quarter sessions.
COMMON LAW POWER.
The broad proposition that this court
"has no common-law power" is indeed
novel, and in striking contract with
the practice of the court since its or
ganization. This contention overlooks
the nature and extent Of the common
law, and how broadly It permeates AL
American Jurisprudence The common
law of England is the basis of our jur-
isprudence. and its great principles are
the foundation of tie federal and state
constitutions and state legislation.
Each state has it's common law derived
mainly from the common source, and
without this it's jurisprudence would be
little more than a constitutional ana
statutory skeleton. largely deficient III
material substance and life. Nearly
all our legal principles, rules ana
forms, are of commOn-law origin. Com
mon-law principles underle all forms
of action, and regulate all forms of
procedure, Undcniably, Common-law
powers are Indispensable to an ade-
quate exercise of the ordained func-
tions of this court The power of a
court is exercised through its DEGREES
and their enforcement. and when its
decrees are founded on the common
law their enforcement proceeds in the
course of the common law. The prin-
CiplcS, rules and forms of the COM
mon law enter very largely into the
adiudiCations Of this court, both di-
rcrtly and by implication
II Is further Contended that although
this court may issue the writ of hab-
cas- corpus, by virtue of the act OF
June a. 1895. one of it's Judges cannot
do so in vacation. The question arose
soon after the organization of this
court, In Duff VS.. McDonough, Pa
SuperiOrt ct. 373. In that case our
late Brother Wickham issued the writ
ir vacation and make it returnable to
the ncXt term. While the question re-
CCivCd consideration, no official an
nOuncemcnt was necessary in view Of
the disposition made of the case on
other controlling grounds. Subsequent.
ly, in Com. ex rel Robert +. Tryford
VS.. Harry A. Lowry, sheriff of ALE
gheny county ct al, a case still pend
ing in this court, a writ of hab2as cor
pus was issued. also by orr late Broth
or Wickham, in vacation, and upon
the question of his authority to do
this he wrote an opinion in which he
said: 'The inherent power of the SUI
perior Court, or of any judge thereof
in vacation, to grant a Commun-laW
writ of habeas corpus, whenever nee
essary, in aid to pending appeal, is,
and should be. beyond controversy,
even if the right Were not expressly
conferred, as it is, by the Act of June
81, 1895, P. L. 2l2 erecting the court.
1t is an implied cOmmOn-law power,
not created by the habeas corpus act
of 1885, but existing both before and
since the passage of that act, in every
court of record, invested with extern
sive appellate or supervisory jurisdic-
tion. and, in a proper case, ii is al
ways grantable whether applied for
in term time or in vacation. 1t may be
moulded to suit the exeCencies of the
particular case: GOslin V. Place. 80
Pa. 500. Williamson V. Lewis. 80 pa. 9;
Duff V. McDOnough, Pa. Superior CT.
3T3." This action of q single judge was
afterward sustained by the court in
banC. In resting the authority of a
judge to issue the writ on the iE)lied
common-law power, Judge Wickham
repeated an established principle and
followed the precedents given by our
Supreme Court and the courts of Eng
land.
ON PRINCIPAL AND PRECEDENT.
The Judges of the Kings Bench and
common pleas of England found @ SINH
lar lack of express authority in the
British statute. but in order TO carry
cut its manifest purpose and spirit
they extended the powers, impliedy
given to the courts. to n single mem
Der of those tribunals when the courts
We're not in session. On this point tho
Lord Chancellor, in Crowley's case. 2
SwanstOn's Chancery Reports. 20. said:
The statute gives no jurisdiction to
the judges CT the common pleas to
issue a writ of habeas corpus, except
in cases there mentioned; but then. by
a construction in favor of the liberty
Of the subject, they have granted the
writ in other cases. and have inferred
from the statute giving to them power
in specified instances, that they possess
q general power to issue the writ. In
this case Lord Eldon overrulcd the de-
ciSion in jerks case, and Vindicatcd
on principal and precedent. the power
Of a single judge to issue the writ and
precedent the power of a single jul ige
to issue the writ in vacation, notwith-
standing the want of express statutory
authority.
The statutory writ of habeaS corpus
in Pennsylvania is of limited applica-
ton. The cases to which il extends
are of two classes only: public re-
straints, on bailable criminal charges,