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ting and acting, not in a ministerial, but in a judicial capacity, are made responsible, in actions by private suitors, for the exercise of their discretion, according to their judgment in term time. If the per- *30 son to whom the writ is directed, or on whom it is served, shall not promptly obey the writ, by making a full and explicit return, and shall fail to produce the party, without a sufficient excuse, he is liable to be forthwith attached and committed, by the person granting the writ, to close custody, until he shall have obeyed the writ. The former statute, instead of this summary remedy, gave a penalty to the party aggrieved, recoverable by suit. The party suing out the writ is to be remanded, if detained: (1.) By process from any court of the United States having exclusive jurisdiction. (2.) Or by virtue of a final decree, or judgment, or process, thereon, of any competent court of civil or criminal jurisdiction. (3.) Or for any contempt specially and plainly charged, by some court or person having authority to commit on such a charge, and when the time for which the party may be legally detained has not expired. If the party be in custody by civil process from a competent power, he may be discharged when the jurisdiction has been exceeded, or the party has become entitled to his discharge, or the process was unduly issued, or was not legally authorized. But no inquiry is to be made into the legality of any process, judgment, or decree, or the justice or propriety of the commitment in the case of per

• See Yates v. Lansing, 5 Johns. Rep. 282. 6 Ibid. 387, S. C., where the principle of the English law on this subject is considered and recognized. The Massachusetts habeas corpus act, in their Revised Statutes of 1835, does not contain degrading penalties hanging over the courts and judges. It does not presume that they will, in such particular cases, more than in any other, be wanting in their duty.

b New-York Revised Statutes, vol. ii. p. 566, sec. 34.

e Ibid. 567, sec. 40.

sons detained under process of the United States, where the court or officer has exclusive jurisdiction; nor where the party is detained under the final decree or judgment of a competent court; nor where the commitment, made by any court, officer, or body, according to law, is for a contempt, and duly charged. The remedy, if the case admits of one, is by certiorari, or writ of error. The court or officer awarding the writ may, in other cases, examine into "the merits of the commitment, and hear the allegations and proofs arising thereon in a summary way, and dispose of the party as justice may require. A person discharged upon habeas corpus is not to be reimprisoned for the same cause; but it is not to be deemed the same cause if he be afterwards committed for the same cause by the legal order of the court in which he was bound to appear, or in which he may be indicted

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a Ibid. 568, sec. 41. The People v. Cassels, 5 Hill N. Y. Rep. 164. In the case of the Commonwealth v. Keeper of Debtor's Apartment, 1 Ashmead's Penn. Rep. 10, it was declared not to be competent upon habeas corpus to inquire into the regularity of the proceedings of another competent court, nor for a single judge to revise the judgment of any other court. The opinion of the supreme court of New-York, in the case of J. V. N. Yates, 4 John's Rep. 317, was to the same effect, and that opinion is supported by the chief justice of Pennsylvania, in the case of the Commonwealth v. Lecky, 1 Watt's Rep. 68. N. Y. Revised Statutes, vol. ii. p 568, sec. 42. If it appears plainly on the return of the writ of habeas corpus that the prisoner stands committed for a contempt adjudged against him by the British house of commons, or by any tribunal or court of competent jurisdiction, the party awarding the writ or before whom it is brought, cannot judge of the contempt or bail the prisoner, but must immediately remand him. The adjudication is a conviction, and the commitment an execution. Murray's Case, 1 Wils. 200. Crosby's Case, 3 Wils. 188. Hobhouse's Case, 3 B. & Ald. 420.

b Ibid, sec. 43-48. The Massachusetts and Connecticut Revised Statutes give the like power of examination and trial on the return of the writ of habeas corpus. Massachusetts Revised Statutes, 1835, part 3, tit. 4, ch. 111. Revised Statutes of Connecticut, 1821, p. 265, and of 1838, p. 337.

and convicted; or if the discharge was for defect of proof, or defect in the commitment in a criminal case, and he be again arrested on sufficient proof and legal process; or if in a civil case, or discharge on mesne process, he be arrested on execution, or on mesne process in another suit, after the first suit is discontinued. And finally, if any person solely, or as member of any court, or in execution. of any order, knowingly reimprison such party, he forfeits a penalty of $1250 to the party aggrieved, and is to be deemed guilty of a misdemeanor, and liable to fine and imprisonment. This last provision is distinguished from that in any former statute on the subject, by applying the penal sanction to the members of any court acting judicially, and by making the act of re-imprisonment an indictable offence.

This is the substance of the efficacious remedy against the abuse of the right of personal liberty, afforded by the celebrated writ of habeas corpus. By the specific provisions, which we have considered, the remedy for all unjust detention is distinctly marked; and even in cases of valid imprisonment, care is taken that it be not unreasonably or unnecessarily protracted. Persons confined upon any criminal charge, and who shall not have been indicted, are to be discharged within twenty-four hours after the discharge of a grand jury of the county, unless satisfactory cause be shown for the delay.c *And prisoners indicted are to be tried at the next court after such indictment found, or they will be entitled to be discharged, unless the trial was postponed at their instance, or satisfactory cause shown by the public prosecutor for delay.d If there be good reason to be

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a N. Y. Revised Statutes, vol. ii. 571, sec. 59.

b Ibid. 571, 572. sec. 60. 64.

Ibid. p. 758. sec. 26.

d Ibid. 737. sec. 28, 29.

lieve that a person illegally confined will be carried out of the state before he can be relieved by habeas corpus, the court or officer authorized to issue the writ may, by warrant, cause the prisoner, and the party so detaining him, to be forthwith brought up for examination, and to be dealt with according to law.a

The habeas corpus act has always been considered in England as a stable bulwark of civil liberty, and nothing similar to it can be found in any of the free commonwealths of antiquity. Its excellence consists in the easy, prompt and efficient remedy afforded for all unlawful imprisonment, and personal liberty is not left to rest for its security upon general and abstract declarations of right.

In addition to the benefit of the writ of habeas corpus which operates merely to remove all unlawful imprisonment, the party aggrieved is entitled to his private action of trespass to recover damages for the false imprisonment; and *the party offending and acting without legal sanction, is also liable to fine and imprisonment as for a misdemeanor.

2. Writ of homine replegiando. The New-York Revised Statutes provided for relief under the common law writ de homine replegiando, in favour of fugitives from service in any other state. This writ is vexatious in its proceedings, and nearly obsolete, but it enabled the party suing out the writ to have an issue of fact tried by a jury.

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a Ibid. 572, sec. 65, 66, 67. The judges in England, in answer to a question propounded to them by the house of lords, held, that the writ of habeas corpus extended only to cases of imprisonment or restraint for criminal or supposed criminal matters. But in Lieutenant Randolph's case, before the circuit court of the U. S. in Virginia, in 1833, it was held, that the writ lay in a case of civil process issuing from a special jurisdiction. Am. Jurist, No. 22, p. 338, 9 Peters' U. S. Rep. 12, note, S. C.

b Vol. ii. p. 561.

It is formally abolished by statute in Mississippi.a Though it was the only remedy at common law for unlawful imprisonment, Sergeant Maynard said, he found but one instance of it in the time of Edward I. It was formerly resorted to in Virginia, but the provision relating to it has been repealed. The New-York provision on the subject has been held to be contrary to the constitution and laws of the United States, and void in respect to slaves being fugitives from labor from states where slavery is lawful; for the constitution and law of the United States contemplated a summary proceeding, and a surrender on claim made, and not the delay, expense and vexation of a suit and jury trial in the courts of the state to which the slave had fled. The Massachusetts

a R. C. of Mississippi, 1824, p. 224.

King v. Lord Grey, 2 Shower's Rep. 231.

* Jack v. Martin, 12 Wendell's Rep. 311. S. C. 14 Wendell, 607. This case, when before the court of errors, went off on another point, but Ch. Walworth held that the act of the state was valid, and that the act of congress of 1793, prescribing the summary manner of seizing and delivering up fugitives from labour in other states, was unconstitutional and void. The legislature of New York, by the subsequent act of May 6th, 1839, ch. 350, made an additional provision, declaring that fugitives from justice from other states may be arrested by warrant of a magistrate, and examined; and if it satisfactorily appears that the crime has been committed by the fugitive charged, the magistrate is to commit the fugitive to bail for a reasonable time to enable the requisition for a surrender to be made. The magistrate may take bail that the fugitive will appear and surrender on the executive demand. If no application be made in a reasonable time, to be designated in the warrant or bail bond, the prisoner is to be discharged. Notice of the arrest is to be immediately given to the government of the other state. If the general sessions of the peace be held in the intermediate time, they have jurisdiction given them over the whole subject. Again by act of May 6th, 1840, ch. 225, provision is made that the claim to the services of alleged fugitives from service or labor in another state, and their identity, and the fact of the escape shall, upon the return of the writ of habeas corpus duly issued to arrest the fugitive, be determined by jury on summary process. See Constitution U. S. art. 4, sec. 2, No. 3. Act of Congress, Feb. 12th, 1793, ch. 7.

VOL. II.

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