PAPER

READ BY

SEYMOUR D. THOMPSON.

Abuses of the Writ of Habeas Corpus.

The writ of habeas corpus has been justly styled the "Writ of Liberty."* "* At times it has been used in such a way as to deserve the censure of being called the Writ of Anarchy. The primary object of the English Habeas Corpus Act was to afford a speedy and summary means of relief to those who should be unlawfully imprisoned by the agents of the Crown. A most odious and oppressive form of this imprisonment was that which took place under commitments issued by the secretaries of state, directing the arrest and detention of persons on suspicion of treason, and upon other charges. The instruments or agents of the secretaries, by whom these arrests were effected, were called messengers. There were some forty of them.§ Persons arrested and detained by them were not confined in any of the public prisons of England established or recognized by act of Parliament, to which the commissions of Oyer and Terminer and Jail

* Callahan vs. State, 60 Ala. 65.

+ Roe's Case, 5 Mod. 78; S. C. 1 Salk. 346; Hellyard's Case, 2 Leon. 175. + See Yaxley's Case, Carth. 291; Memorial of the Judges, And, 297.

In the case of Roe et al., it was said by Sir Bartholomew Shower, in making his argument for the prisoners, that there were forty-two of them. (5 Mod. 78, 82.) This was in the seventh year of William III.

Delivery extended, but were confined in the private houses of these messengers. Scattered throughout London, or perhaps throughout England, there were, therefore, some forty private prisons-unknown to the laws, and unvisited by the courts of justice-in which, but for this salutary writ, the king's subjects might languish for an indefinite period of time without being brought to trial. Designed as a means of subjecting to the superintendence of the superior courts and judges, arrests and imprisonments made by ministerial officers and by inferior magistrates, it was never intended that it should interrupt the regular course of justice in the superior courts, or that it should subject the executive department of the government to the superintendence of the judiciary. How far it has been kept within its proper limits in England, it is not my purpose to inquire; but I shall point out that judicial sentiment in America has been so far influenced by the extravagant views of the right of personal liberty with which the American Republic commenced its career, that this writ has been used by the federal courts as the means of subjecting one of the most important functions of the executive branch of the government to the control of the judiciary; that the state courts have, by the same means, attempted to subject the executive department of their own states to judicial control; that the modesty of these tribunals has not witheld them from attempting at times the same control over the executive department of the general government; but that they have attempted by this means to revise its action in executing its treaties with foreign countries, and have even asserted a use of this writ, such as, if carried out by them on the one hand, and yielded to by the officers of the general government on the other, would enable them to arrest the march of the national armies in time of actual war. Nor have the courts of these two jurisdictions, the federal and the state, always stayed

their hands in the use of this writ from the molestation of each other. They have attacked each other's processes and opened each other's prisons. Such a conflict, from the beginning, must have been unequal, and its result must have been foreseen. Questions which were labored by these respective tribunals in ponderous opinions were finally settled. amid the thunder of cannon; and under that settlement, as I shall hereafter show, the police regulations of the states, their criminal codes, the decisions of their highest judicatories, and even their constitutions, lie at the feet of the inferior federal judges.

When we consider that the doubtful policy of the founders of the government and of their successors, until a period comparatively recent, committed the execution of the federal laws in part to the judicatories of the states; made the justices of the peace of the states the examining magistrates in criminal cases for the federal tribunals; made the judges of the states federal magistrates for the purpose of executing extradition treaties with foreign countries, for the purpose of naturalizing aliens, and in some cases for the purpose of executing the criminal statutes of the United States; and made the jails and prisons of the states the jails and prisons of the federal government,-it is not a matter of surprise that the judges of the state courts, at an early day, exercising a supposed jurisdiction by means of the writ of habeas corpus, should have assumed to say whether a fugitive from the justice of a foreign country should be surrendered; * whether fugitives escaping from slavery in other states should be delivered up pursuant to the Constitution and laws of the Union; whether persons enlisted in the armies of the United States should be held to military service, or dis

*Re Washburn, 4 Johns. Ch. 106; S. C. Wheel. Cr. Cas. 473; Com. 8. Deacon, 10 Serg. & R. 125.

+ Matter of Booth, 3 Wis. 1; Ex parte Robinson, 1 Bond, 39.

charged therefrom, even in time of war;* and whether a person in the military service of a foreign country should be tried as for a crime in a state tribunal for an act done as a belligerent under the command of his sovereign and in conformity with the laws of nations. These pretenses, born of an extravagant view of state's rights and state sovereignty, presented a paradox which excites the liveliest curiosity in us, who look back upon them as matters of history; for if a state is a sovereign, and if the United States is another sovereign, these decisions present the spectacle of the courts of one sovereign controlling the officers and agents of another sovereign; interposing in its foreign relations, and even disbanding its armies. If great inconveniences did not arise from the assumption of such a jurisdiction, it was due to the wisdom, the patriotism, and the moderation of the judges who assumed to exercise it. The very existence of such a power, distributed so widely and through so many scattered and irresponsible agencies, should have been a source of serious apprehension. An admonition of what might have been done in the exercise of it, should have been found in what actually was done. The Supreme Court of New York held and tried a British subject for murder, predicated upon an act done upon the soil of that state as a belligerent during the Canadian Rebellion of 1837, after his immediate release had been' demanded of our government by that of Great Britain and an eminent jurist, holding the office of chief justice of the same state, issued an attachment, for an evasive return to a writ of habeas corpus, against a general of

* Com. vs. Harrison, 11 Mass. 63; Com. es. Cushing, id. 67; Com. us. Downes, 24 Pick. 227; McConologue's Case, 107 Mass. 154; U. S. vs. Wyngall, 5 Hill, 16; Carlton's Case, 7 Cow. 471; State 8. Dimick, 12 N. H. 194.

† People rs. McLeod, 1 Hill, 377. This could hardly be called an abuse of the writ, the court having refused to discharge the prisoner.

People vs. McLeod, supra.