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Show 400 APPENDIX. ately ? If these que. tions must be an werc'd m the a.flirmative, then we arc comp ll d, against our will and contrary to onr conYictions of duty, to wage a con~taut w.trfare against the federal tribunals by firing off writs of ltabeas co1pus upon them all the time. The punitive justice of the state would sullh still more seriously. The half of the Western 1' eni ten ti;u·y would be before us at Philadelphia, and a similar proportion from Cherry Hill and l\loyamensing would attend our sittings at Pittsburgh. To r emand them would do very litllc good; for a new set of writs would bring them all back again. A sentence to solitary confinement would be a sentence that the CO!lYict should travel for a limited term up and down the state, in company with the officers who might have him in char·gc. By the same mean the inmates of the lunatic asylums might be temporarily enlarged, much to their own de trim en t; and every soldier or seaman in the sen ice of the country could compel his commander to bring him before the court six times a week. But the habeas corpu.s act h;u; never received such a construction. It is a writ of right, and may not be r efused to one who shows a p1"1"ma facie case entitling him to be discharged or bailed. But he has no right to demand it who admits that he is in legal cus tody for an oi!Cncc not bailable; and he doc make what is equivalent to such nn admission when his own application and the commitment referred to in it show th at he is lawfully rlctaincd. A complaint must be made and the cause of detainer submitted to a judge before the writ can go. The very object and purpose of this is to prevent it from being trifled with by those who manifestly have no right to be set at liberty. It is like a writ of error in a criminal case, which the court or judge is bound to allow if there be reason to suppose that an error has been committed, and equally bound to refuse if it be clear that the judgment must be affirmed. We arc not aware that any application to this court for a writ of lmbeas corpus has ever been successful where the judges, at the time of the allowance, '''ere satisfied that the prisoner must be remanded. The petitio11cr's counsel say there is but one reported case in which it was refused, (5 Billl>. 30-1 ;) and this is urged in the argument as a reason for s upposing that in all other cases the writ was issued without cxami nation. But no such in· fercncc can fairly be drawn from the scarcity of judicial decisions Ul>On a point like this. We do not ex pcct to fin <I in reports so rcce n t as o nrs those long-established rules of Ia w which the s tudcn t learns from his elementary book , and which are con. tantly acted upon without being disputed. Th1• l,abeas COI1JUs is a common law writ, and has been used in England APPENDIX. 401 from time immemorial, j ust as it is now. ThC' f)tatu tc of 31 Char. II. c. 2, mane no alteration in thC' pratt icc of the courts in gra ntin~ thC'se writs. (3 Darn. and Ald. 42J to Chitty'::; R eps. 207.) 1 t merely provtdecl ih<~t th\' ·udtre in Yacntion should lwYe the power '' hich the courts had prevwusly J b · d · t . t· exerc1~e m cnn 11 t 1e , (l (", }11-~" t·)''."..', Gen • l~mc • GSG,.) and inilic.:ted penaltie. s upon those who should defeat its operation. The common l~~v upon thw subject was brought to America by the colonitiL' ; and most, 1! not all of the states, have sm. ce enacted 1a ws 1.e s' cml'l .m hcr the }~ ubc rli ·h s' tatute. of Charles II. in every principal feature. The constitution of the Uutted States declar-es that " the privilege of a. writ of lwb('((s t 'OJpu.· ::;ha~l 110 ~ 'be · f 1 suspended unless when, 111 cases o rcu• c 111· 011 o1· l.llV''I·s i o n ' the lHtbllc safety may reqm· re 1·~' · " Con"cr 1·'n ··s ]n• · conferred upon the fcdcrnl jndges to. e po· tw ·e r to issue such writs accordincr to the principles and rules rcg ulatmg 1 m other courts. Seeing that the same gcucral princi.11les of commo~l l.aw .0 11 this subject preva.il in England antl J. \. men·c. a, ., w d SC·' c· inon- als· o the snm, lan. ty of their statutory r eo-ul atw. ns m. bot1 1 coun t u.· es, the (kci~· ion of the Bng· lull1 well as bof the American courts, both state and fe<.leral, arc judges, as l d fi . >ower:; ' LIHl entitled to our fullest resp ct, as settling am e mng our I ' dutie . 11 b 11 . 1 Dlack.·tone (3 Com. 132) says the wri t of lwbeas corpus shou c e a O\\<'C only when the court or .1. ndgc J. S sat 1. s f'r c<l tln' t the p. ·' trty hath prohal..> lo. cause to be delivered. lie gives cogent. reason::; why It sho~tltl not b~ .d lowed in any other case, and c1. tes w1. t 1l UIHJUc.L l 1'f ied approbat. iOn the }H CCC. ·· dents set by Sir Edward Cok c and Clu. cf J us CJ CC V·a uoo· ha' n m cases , whc.1. 0 they had refused it. Chitty lays down t 1l e ru1 e (1 Cr · L·'l .\v ' 1_0 1 '· U cn,e1 ,\1 1 . Prac. GSG- 7.) 1t seems to have been actcd upon by·'t·1 lth Jucl~rr e: . 1l e wn. t was r cfusedm. R ex v. S...c. .h et.n eJ., (l 1.H, U.l.. ,1..6 ,) ' ) and in the case, of t 11 e three Spani:-.h sailors, (3 D., lacl<:. R ep. 13-? ~·) In IIobhouse'::; case, (2 Ba, rn. and Ald. 420 ) it was fully flettlcd by a nnanu• nous c<> L t rt ' '. 1 , th•C ' true c•o n- struction of t' he s tat n t e, that the wn. t ". ; nc ver to be allowed, Jf upon VleI w of the commitment it be mam.f est that t h e I) risoner must be. remande(d.. f nr New York when the statute m. force th er-e w·'1 s precisely ltke ours, so ,t t I mean as ' th1. s questi.O n 1. s con eel. n e d ' ) 1. t was decidcu h·y the s.n ,prcmc cour 1 · tlle clis- (5 J olms. 232) that the allowance of t 1l e wn· t ''a, s '• t nn' ttcr w1 ~1m · 1 . . f It CI·etion of the court dependm. g on ill e g ro UH(l:S laid in the app ,l C., l lO. ll . (D wasrcfu ·ed in IIus' ter' s case, (1 '-"'-)' C · 136) and in E.r p. a.r t<• If•CelfhJlliScVfHJ,u s- John . Rep. 139.) In acluition to t 1n -s ".e lnH' the opmwn o l : t llt not ticc Marshall, in IV atkins "s case, ( 3, p e tcrs., '-)O-'J) . that. the .\ tY rbt e roeumg anded. to be awarded if the court is ·a ti:-5fLc'd that the pnsonci mus 34 •*• |