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diction. This may be considered as the established doctrine, equally in England and in this country."
I provided, by the habeas corpus act, that a person set at large by the writ, cannot be re-imprisoned for the same offence, unless by the legal order or process of the court wherein he was bound by recognizance to appear, or of some other court having jurisdiction of the cause. The construction given to this prohibition in the case of Yates,b was, that the power of the judge in vacation to discharge on habeas corpus, did not extend to cases of commitinents in execution by the judgment of a court of record, for this would be giving to a single judge the right to control the decisions of all the courts of record, and even the decision of a majority of the court of which he was a member, provided he reserved the exercise of his power until after the adjournment of the court. Such a discharge was not considered to be any obstacle to a re-imprisonment for the same offence by the court which committed. The discharge was considered as not warranted by the statute, which never intended to vest the power of review of judicial decisions of the regular tribunals, in a single member out of court, and acting in a summary manner. It expressly excepted from the operation of its provisions, the case of persons convict, or in execution by legal process.c
a Crosby's case, 3 Wils. 188. Burdett v. Abbott, 14 East, 1. Gist v. Bowman, 2 Bay, 182. Anderson v. Dunn, 6 Wheaton, 204.
b4 Johns. Rep. 318.
c The case of the King v. Jones, according to an English printed report of the case, was decided by Lord Ellenborough at chambers, on the 30th of November, 1816. The defendant had been convicted by two justices of a statute offence, and sentenced to three months imprisonment, and being brought up on habeas corpus, Abbott moved for his discharge on the ground of error in the conviction. Bo'land, in opposition to the motion, cited the case of Yates, in the Supreme Court of this state. His lordship took time to examine the case, and then declared. that the doctrine of it was strange and unprecedented, for that the decision of the judge in vacation, on habeas corpus, was binding, and
By the specific provisions which have been 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 committed for treason or felony, are, upon their petition, to be indicted and tried by the second term after their commitment, or they will be discharged, unless satisfactory cause be shown for the delay. No citizen can be sent a prisoner out of the state, for any crime committed. within it; and whoever is concerned in doing it is responsible to the party in exemplary damages, and is also deemed guilty of a misdemeanor, and disabled to hold any office
could not be reviewed or reversed by the first committing authority, until it was brought up regularly by certiorari. This was the substance of the decision; and if it be admitted, that a judge at chambers has jurisdiction to review and reverse a commitment in execution, by the order or judgment of the Supreme Court or of the Court of Chancery, for a contempt, then, indeed, such decision, upon habeas corpus, would be binding until regularly brought up; but if he has no such power, (as the Supreme Court of New-York adjudged,) then his act is irregular, null, and void, and the party so irregularly discharged by him is liable to recommitment by the first committing authority. The first committing authority in that case was none other than the Court of Chancery, holding its regular session, and awarding execution upon conviction in that case, and the power that prostrated the effect of that judg ment and execution by discharging the party, was none other than a single officer acting summarily out of court. Which of these two decisions ought to be held valid, until regularly reviewed and reversed by the proper appellate jurisdiction, was the question in the Supreme Court in the case of Yates. The doctrine of the Supreme Court was, that a conviction in Chancery was not to be reviewed and reversed in that summary way. The doctrine of Lord Ellenborough appears to have been, that such a conviction (and of course a judgment of the Supreme Court) might be summarily reviewed and reversed as to the execution upon it, by a judge at chambers; while, on the other hand, his decision is obligatory every where, until brought up and reviewed in the regular course. This latter doctrine appears to be best entitled to the appellation of "strange and unprecedented."
of profit or trust. The judge awarding the habeas corpus is also authorized to attach any person who meditates to elude the requisitions of the writ, by withdrawing from the jurisdiction of this state with the party in confinement.a
This is the substance of the provisions of the habeas corpus act, intended for the security of the personal liberty of the citizen The statute 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 attunlawful 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.
In England, the regular consequence of personal liberty is said to be, that every Englishman may claim a right to abide in his own country so long as he pleases, and is not to be driven from it, unless by the sentence of the law, prescribing exportation or banishment in the given case; or unless required abroad while in the military or naval service. Exportation in England rests entirely upon statute, for it was a punishment unknown to the common law. Some of our American constitutions have declared, that no person shall be liable to be transported out of the state for any offence committed within it. It would not be consistent with the spirit of that provision to prescribe banishment as a part of the punishment, whatever foreign place or asylum might be deemed suitable for the reception of convicts. In this, and in most of the states, no such constitutional restriction is
a Laws N. Y. sess. 36. ch. 57. s. 10. Act of 1818. supra, s. 4, 5 b Constitutions of Vermont, Ohio, Illinois, and Mississippi
imposed upon the discretion of the legislature; and in this state, the governor is authorized to pardon upon such conditions as he may think proper. Convicts have sometimes been pardoned under the condition of leaving the state in a given time, and not returning. This was equivalent, in its effect and operation, to a judicial sentence of exportation or banishment.
In England, the king, by the prerogative writ of ne exeat, pray prohibit a subject from going abroad without license. But this prerogative is said to have been unknown to the common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. The first invasion of this privilege, was by the constitutions of Clarendon, in the reign of Henry II.," and they were understood to apply exclusively to the clergy, and prohibited them from leaving the kingdom without the king's license. In the magna carta of king John, every one was allowed to depart the kingdom, and return at his pleasure, except in time of war. But this provision was omitted in the charter of Henry III.; and in the reign of Edward I., it began to be considered necessary to have the king's license to go abroad; and it became at last to be the settled doctrine, and no subject possessed the right of quitting the kingdom without the king's license; and prerogative writs, which were in substance the same as the ne exeat, became in use, requiring security of persons meditating a departure, that they should not leave the realm without the king's license.c The prerogative of the crown, on this point, seems to be conceded; but until the king's proclamation, or a writ of ne exeat, has actually issued, it is understood that any Englishman may go beyond sea.
This writ of ne exeat has, in modern times, been applied as a civil remedy in Chancery, to prevent debtors escaping
a Beames on the writ of Ne Ereat, p. 2.
b Blacks. Ed. of Magna Carta of king John, art. 42.
& Beame's Ne Exeat, ch. i.
from their creditors. It amounts, in ordinary civil cases, to nothing more than process to hold to bail, or compel a party to give security to abide the decree. In this view, we have at present no concern with this writ; and in this country, the writ of ne exeat is not in use, except in Chancery for civil purposes, between party and party. No citizen can be sent abroad, or, under the existing law of the land, prevented from going abroad, except in those cases in which he may be detained by civil process, or upon a criminal charge. The constitutions of several of the United States have declared, that all people have a natural right to emigrate from the state, and have prohibited the interruption of that right. We shall, in the course of the next lecture, examine particularly into the foundation of this right of emigration. when carried to the extent of a perpetual renunciation of one's allegiance to the country of his birth.
a Constitution of Vermont, Pennsylvania, Kentucky, Indiana, Mississippi, and Louisiana.