Year: 1863

known to the English law (the source ol
most Of our American law) for many centu-
ries. The common law, which is that por-
tion of the law which is 80 ancient ss not
to be found embodied in the form Of q
statute, provided for the issue Of this writ
in variety Of cases and each Of these
classes of cases had its own peculiar spe-
cies or form Of writ Of habeas corpus
Various statutes were passed to prevent
the benefit of the writ from being with
held for the purpose of expressing the
subjects Of the Grown, the most important
Of which was the one passed In thOthirty-
first year Of the reign Of Charles the Sec
ond, which is called by way of eminence
the Habeas Corpus Act. The specific
provisions Of this Act it is not necessary
to detail.


1t is probable that at the time of the
adoption of the Federal Constitution every
State was provided with habeas corpus
Act Of its own, or had adopted the sub
stance Of the legislation of England on
the subject as part Of its own common
law. By this means 1.-THE privileges of
the writ Of habeas corpus" we're extended
to every citizen Of these United States
There have never been in this country as
many forms as uses of the writ as in Eng
land, and it has almost invariably been
limited to the form of the general pur.
pose contemplated by the Act Of the thir-
ty.first year of Charles the Second.


The general purpose of the writ Of
habeas corpus is to provide summary
and expeditions lease to persons imprison-
ed or restrained of their liberty without
authority Of law, and to save them from
languishing in unlawful confinement. 1t
is signed by Judge of Supreme Court,
and commands the person having the
custody of another (whether acting in
public or private capacity, to "have the
body" (habeas corpus) Of the prisoner be-
fore the Court, or before the Judge II the
Court be not in sitting, in order that it
may be determined whether the prisoner
is detained by due authority Of law. Be-
fore the writ issues there must be COM
plant and petition Of the prisoner, or
some friend of his, substantiated by the
oath Of the complainant. When such
complaint is made iL good faith it is the
duty of the Judge to issue the writ
Penalties are sometimes imposed upon
Judges who refuse TO grant the privilege
of the writ, and are always imposed upon
those who refuse to bring prisoner be-
fore the Court or Judge, and make re-
turn or exhibit Of the cause or authority
for the Imprisonment. If the Court or
Judge on due inquiry shall find, not in
deed that the prisoner is innocent, but
that the Imprisonment is unauthorized
by law. or should be terminated by the
giving Of sufficient bail, it is the duty Of
the Judge TO order his release uncondi.
tionally in the first place, and upon bail
IN the other. There are no damages re-
covered in this proceeding by the injured
party against the persons who have un-
lawfully imprisoned him, and there is no
penalty pronounced for the crime against
public justice.


This summary methcd of obtaining re-
lease from unlawful imprisonment is ad-
ditional to the remedy for the injury by
means of suit for damages, provided by
the common law Of the various States and
England, and to the penalties often inn
posed for the violation of public justice.
The suit for damages is the only means Of
obtaining private satisfaction far the out
rage: and in the English law it is at least
as ancient as the writ Of habeas corpus.
II there were no such thing as the writ Of
habeas corpus, there would still be a
right to an action for damages for the
trespass, and should the existing law
which gives the privilege be annulled,
the injured party would not be left entire.
ly without satisfaction for the wrong.


The legislation Of the Federal Govern
ment is not without its statutes giving
the citizens in certain cases the privilege
Of the writ Of habeas corpus. 1t may be
had where they are in custody, under
or by color of the authority ofthe United
States, or are committed for trial before
some court Of the same, or are necessary
to be brought into court to testify" or
"where he or they shall be confined on
or by any authority Of law, for any act
done or omitted to be done in pursu-
ance Of a law of the United States" Or
where foreigners are confined for any act
done under the sanction Of a foreign SOW
ereign by virtue or under color Of the
law of nations. These provisions are
designed for maintaining the authority
and discharging the duty assigned to
the general government by the Consti-
tuition.


There is a marked difference between
the functions of judge under our Amer
ican habeas corpus acts, and under those
Of England, arising from the fact that here
VIC have certain higher law" contained
in written Constitutions, to which the
enactments of State and National legisla
tive bodies must conform. When Judge
Of State or Of the United States is in
quiring whether an Imprisonment is le-
gal, he is to be guided in his inquiries as
much by the fundamental law as any 9TH
er. A judge ofa State is to take into
view the Constitution and laws Of the Uni
ted States (Which are the supreme law Of
the land), as we'll as the Constitution and
laws of his State. This way tremen-
dous power can be lodged in the hands Of
a single judge. He may set aside, the
case in hand, an act of State legislature
of Congress. 1t will readily be conceded
that a power ought not to be exercised
lightly, that where there is much room
for differenc of opinion in regard to the
harmony of a law of Congress with the
Constitution of the United States, sin
gle judge should not hasten to decide
point, if the exigencies of the case will
admit Of delay, till he can have the aid of
the compared counsel of his associates, If
not of the opinion Of a tribunal Of ultimate
resort.


This is easy TO see that there may be q
clashing, at time at least between tie
judicial authorities of State and the Uu-
ion, growing out Of a difference Of opin-
ion in regard to the constitutionality Of a
law Of Congress. A prisoner held by