in term time, and they assumed a discretionary power of awarding or refusing it. « The explicit and peremptory provisions of the statute of 31 Charles II. c. 2., restored the writ of habeas corpus to all the efficacy which was requisite for the due protection of the liberty of the subject. That statute has been re-enacted or adopted, if not in terms, yet in substance and effect, in all these United States. The privilege of this writ, is also made an express constitutional right at all times, except in cases of invasion or rebellion, by the constitution of the United States, and by the constitutions of most of the states in the Union. The citizens are declared in some of these constitutions, to be entitled to enjoy the privilege of this writ in the most "free, easy, cheap, expeditious, and ample manner;" and the right is equally perfect in those states where such a declaration is wanting. The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the habeas corpus act, is a common law right; and it is undoubtedly true, as has been already observed, that the common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the just principles of that law, suitable to our state of the society and jurisprudence. It has been adopted or declared in force, by the constitutions of some of the states,d and by statute in others;e and where it has not been so explicitly

C

a 3 Bulst. 27.

b See, for instance, the habeas corpus act, in Massachusetts, of 16th March, 1785, referred to in 2 Mass. Rep. 550; and the habeas corpus act of South Carolina, of 1712, and referred to in 2 Bay, 563. and 2 Const. Rep. 698.; and the habeas corpus act of Pennsylvania, of 18th February, 1785, and referred to in 1 Binney, 374; and the habeas corpus act of New-York, 1 R. Laws, 354.; and the habeas corpus act of New-Jersey, referred to in 3 Halsted, 121.

c See vol. i. 322.

d Constitutions of New-York and New-Jersey, e Pennsylvania and Virginia.

adopted, it is nevertheless to be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal. We sball, accordingly, in the course of these lectures, take it for granted, that the common law of England, applicable to our situation and governments? is the law of this country, in all cases in which it has not been altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions.

'The substance of our statute provisions on the subject of the writ of habeas corpus, may be found in the statute of 31 Charles II. c. 2., which is the basis of all the American statutes on the subject, and which the statute of this state has closely followed. It is provided, that the person imprisoned, if he be not a person convict, or in execution by legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected to apply within two whole terms after his imprisonment, may apply by any one on his behalf, in vacation time, to a judicial officer, for the writ of habeas corpus ; and the officer, upon view of the copy of the warrant of commitment, or upon proof of the denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. Upon service of the writ, the party detained is to be brought before the judge, with all reasonable diligence, together with the true cause of the commitment, and detainer, and the judge is thereupon required to discharge the prisoner, upon reasonable sureties, or else remand him, as the nature of the case, and the circumstances of the commitment, shall require.

An adequate penalty is imposed upon the person whose duty it shall be to make return to the writ, for neglecting or refusing to obey the same within the time prescribed; and

a 2 N. Hamp. Rep. 44. Marshall, Ch. J. in Livingston v. Jefferson, A Hall's L. J. 78.

Laws N. Yvol. i. 352. edit. 1813.

if the judicial officer shall refuse to allow the writ when dály demanded, he also forfeits a penalty to the party aggrieved. The penalty is granted against the judicial magistrate, who, in vacat iontime, denies the writ ; and judges are not responsible for the exercise of their discretion, according to their judgment, in term time; for they then Sit and act, not in a ministerial, but in a judicial capacity. Nor does any penalty attach upon the act of the judge, after the prisoner is brought before him. He is then, according to his best judgment and discretion, to bail, discharge, or remand the prisoner.

The act of this state of the 21st of April, 1818,6 declared that the provisions of the permanent habeas corpus act should extend to "all cases, where any person, not being committed or detained for any criminal or supposed crimiinal matter, nor in execution by legal process, should be confined or restrained of his liberty, under any colour or pretence whatsoever." The habeas corpus act in Pennsylvania, is equally extensive.c When the prisoner is brought before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the ordinary exercise of judicial power. The prisoner is to be bailed, or discharged, or remanded, as to justice shall appertain. He may be remanded in the following cases: (1.) when it appears that he is detained upon legal process, out of some court having jurisdiction of criminal matters: (2.) when he is detained by warrant, under the hand and seal of a magistrate, for some matter or offence, for which, by law, the prisoner is not bailable; (3.) when he is a convict in execution, or detained in execution by legal civil process; and, (4.) when detained for a contempt, specially and plainly charged in the commitment, by some court having authority to commit for contempts, unless the power and authority of such court shall have expired and ceased.

Upon the return of the habeas corpus, the judge is not confined to the face of the return, but he is to examine into the facts contained in the return, and into the cause of the imprisonment, whether the commitment be for any criminal or supposed criminal matter, or not; and then he is to discharge, bail, or remand, as the case shall appear require. This power of revising the cause of commitment is given by the act of this state of 1818; and it authorizes the judge to re-examine all the testimony taken before the magistrate who originally committed, and to take further proof on the subject, for he is "to examine into the facts." This was the construction given to the act in The Matter of Washburn ;a and it is a new power, not to be found in the English statute, and it probably exists in other states, and is an improvement upon the English provisions. The power gives to the judge who takes cognizance of the case, upon the return of the writ, the character of a court of review, even as to the acts of a co-ordinate magistrate. The policy of the introduction of these new checks, is to prevent more effectually the continuance of all unjust or groundless imprisonment.

A question was raised, and much discussed, in the courts of justice in this state, in the case of Yates, whether the judge before whom a prisoner was brought upon habeas corpus, had a right to examine into the validity of a commitment of a person for a contempt, by a court confessedly competent for the purpose. The person committed by the Chancellor in that case, by an order by him made, sitting in the Court of Chancery, was brought before a judge of the Supreme Court, in vacation time, upon habeas corpus, and discharged. The Chancellor, disregarding the discharge, recommitted the party, and the same judge again, on habeas corpus, discharged him. He was again recommitted, and an habeas corpus was again issued, returnable before the

a 4 Johns. Ch. Rep. 106.

b 4 Johns. Rep. 318.

Supreme Court, where the case was elaborately discussed and considered, and the party remanded to prison, as being in execution under a conviction for a contempt, and, therefore, not entitled to his discharge. This order of the Supreme Court being brought up in review before the Court of Errors by a writ of error, the judgment or order of the Supreme Court was reversed. Whatever inference might have been drawn in the first instance from that reversal, yet the question was put afloat, and the better opinion would rather seem to be, that the doctrine of the Supreme Court was reinstated in all its force, by another decision of that court, subsequently affirmed by the same Court of Errors, holding, that the Chancellor was not responsible to the party he had so repeatedly committed, for the penalty given by statute upon re-imprisonment after a discharge on habeas corpus.a The result of that controversy leaves the following principles undisturbed, and tends to settle and confirm them, viz. (1.) That every court has a right to commit for contempt, and that no other court has a right, upon habeas corpus, to control that commitment. (2.) That no judge is responsible, in a private suit, to pains and penalties for his judicial acts. If any doubt had remained as to the ultimate effect of the decisions in the case of Yates, that doubt was entirely removed by the act of 1818, already referred to, which declared, that a party in prison for a contempt, could not be discharged on habeas corpus, so long as the power of the court which determines the contempt continued. That act may be considered as only declaratory of the established principle of law, that every court of justice has a right to commit for contempts, and that it belongs exclusively to the court offended, to judge of contempts, and what amounts to them; and no other court or judge can, or ought to undertake, in a collateral way, to question or review an adjudication of a contempt made by another competent juris

a 5 Johns. Rep. 282. Yates v. Lansing. 6 Johns. Rep. 337. Yates v. The People.