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Show 410 APPENDIX. gust, "·as fixed for the hearing. On that day a.n argument was made by J\Ie~ rs. :1\Iercdith and Gilpin, in faTor of the allowance of the writ. I may as \Yell remark here, that upon the presentation of the patition I was in faYor of awarding the habeas corpus, greatly preferring that the right of the petitioner to his discharge should be determined upon the r eturn of the writ. If this course had been adopted, we should l1ave had the views of counsel in opposition to the dischn.rge, and, moreover, if necessary, we could, after the return, have examined into the facts of the case. I am in favor of granting this writ, first, because I belieYe the petitioner has the ric0 rht to demand it at our hands. ].<'rom the time of Magna Charta the writ of habeas corpus has been considered a writ of right, which every person is entitled to ex debito justicice. "But the benefit of it," says Chancellor Kent, "was in a great degree eluded in England prior to the statute of Charles II., as the judges only awarded it in term time, and they assumed a discretionary po\ver of awarding or refusing it." 2 Kant Commentaries, 2G. And Bacon says, "Notwithstanding the writ of lwboas corpus be a writ of right, and what the subject is entitled to, yet the proYision of the law herein being in a great measure eluded by the j udgc as being only enabled to a''ard it in term time, as abo by an imagined notion of the judge that they had a discretionary power of granting or refusing it," the act of 31 Charles II. was made for remedy thereof. I am a\ntre that both in England and this country, since the passage of the statute of Charles II., it has been held that where it dearly appeared that the pri 'Oner must be remanded, it was improper to grant the writ; but I know of no such construction upon our act of 18th February, 1785. The people of the United States hn.ve ever regarded the privileges of the habeas corpus us a most invaluable right, to secure which, an interdiction against its suspension, "unless when in case. of rebellion or invasion the public safety may require it," is inserted in the organic law of the ~nion; and in addition to onr act of 1785, which is broader and more comprehensive than the English . tatute, a provision in terms like that in the constitution of the United States is to be found in the constitution of this State. It is difficult to conceive how words could be more imperative in their character than those to be found in our statute of 1785. The judges named are authorized and required, either in vacation or term time, upon the due application of any person committed or detained for any criminal or supposed eriminal matter, except for treason or felony, or confined or restrained of his or her liberty, under any color or pretence whatsoever, to award and grant a ltabC'as corpus, directed to the person or per:::;ons in whose custody APPENDlX. 411 the prisoner is detained, returnable immediately. And the refusal or neglect to grant the writ required by the act to be granted, renders the judge so neglecting or refusing liable to the penalty of three hundred pounds. I suppose no one will doubt the power of the legislature to require this writ to be issued. by the judges of the commonwealth. Audit is tolerably plain that where, in exprc::;s words, a. certain thing is directed to be done, to which is added a penalty for not doing it, no discretion is to be used in obeying the mandate. The Engli h statute confined the penalty to a neglect or rcfu ·al to grant the writ in vacation tim e, and from this a discretionary power to refuse it in term time was inferred, but our a.ct of As ·eml..Jly docs 110t limit the penalty to a refusal in vacation, but is sufficiently comprehensive to embrace neglect or refusal in vacation or in term time. I have looked in vain through the numerous cases reported in this Slate to find that the writ was ever denied to one whose application was in due form, and whose case was within the purview of the act of A. :;embly. In R espublica v. Arnold, 3 Yates, 263, the writ was refused because the petitioner \vas not restrained of his liberty, and therefore not wilhin the terms of the statute; and in Ex pa'rto LauTence, 5 Binney, 30!, it was held that the net of Assembly did not oblige the court to grant a habeas corpus where the case had already been heard upon the ame evidence by another court. vVithout going into an examination of the numerous cases where the writ has been allowed, I believe it can be safely afiirmcd that the denial of the writ in a case like the present is without a precedent, and contrary to the uniform practice of the bench, and against the uniYersal understanding of the profession and the people; but what is worse still, it appears to me to be in direct violation of the law itself. It may be said that the law neYer requ!res a useless thing to be don:. Grant it. nut how can it be determined to be useless until the case IS heard? vVhether there is ground for the writ is to be determined according to law, and the law requires that the determination should follow, not precede the return. An apph. cah.o n was made to t h e cl 1 1. e f J.U S i.1 ee o f thi·s court for a writ o.f 1.t abeas co1pus previous to the apph.c at1·0 n now b em· g c,o n sidered · The wn. t was refused, and it was ·tatcd in the opinion that the counsel for the petitioner waived the right to the writ, or did not desire it to be ic.;su.cd, if the chief justice should be of the opinion that there was not suiiici~nt ca~se sc t 1~ 0rth 1.1 1 the petition for tl1e pn.s oner ,s cl 't sc l1 :u. g C · nut this cn.n lil UOWISC prejudice the petitioner's rjght to the writ which he now demands. Even |
