tion to the members of any court acting judicially, and by making the act of reimprisonment au 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. (d) * And prisoners indicted are to be 32 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. (a) If there be good reason to believe 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 be dealt with according to law. (b)

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

(d) Ibid. p. 758, sec. 26.

(a) Ibid. 737, sec. 28, 29.

(b) 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 United States 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. 12, note,

acting without legal sanction is also liable to fine and imprisonment as for a misdemeanor.1

1 In the case of the United States v. Booth, 21 How. U. S. 506, the right of a state judge or court to liberate, on habeas corpus, persons imprisoned under judicial process issued by federal authority, came under consideration in the Supreme Court of the United States; and the decision was, that an imprisonment under a warrant duly issued by a United States commissioner to arrest an offender against a federal statute, or under the judgment and sentence of a federal court having jurisdiction to try such offender, could not be inquired into before the state tribunals, although the constitutionality of the statute violated was in question, and although its assumed unconstitutionality was the ground of the proceeding in the state courts. This decision has been recently much quoted in political discussions as an authority for a very different proposition, to wit, that in no case can the state tribunals relieve against an arrest or imprisonment under a statute of the United States, or indeed under any authority which the United States government or any of its officers assumes to exercise. Obviously this is an unsound proposition. In the Booth case the imprisonment was lawful under judicial sentence or process, and quite irrespectively of the constitutionality of the statute which he had violated. The constitutionality of the statute was one of the very questions on which the innocence or guilt of the prisoner depended. The United States commissioner had undoubted authority to order his arrest for trial, and the federal court had exclusive jurisdiction to try him. The state court in discharging him on habeas corpus, because it deemed the statute to be unconstitutional in effect, undertook to withdraw from the federal court the very question of guilt which that court alone could rightfully try. But from the foundation of the government it has been the practice of state courts to pass upon the constitutionality of the laws of Congress whenever the question came before them in proper forms of litigation; and when their judg ment is against the law, an appeal lies to the federal Supreme Court. This right of appeal preserves the harmony of federal and state jurisdictions. The writ of habeas corpus in the state courts brings up all questions on which the lawfulness or unlawfulness of the imprisonment depends; and if the authority for such imprisonment is mere ly a statute of the United States without judicial process, for example, a statute which commands A to take B, and hold him to military service, manifestly the statute can be questioned in all courts, state or federal, which have jurisdiction to redress wrongs against personal liberty, and in all forms in which that jurisdiction can be invoked. To an action in a state court for false imprisonment, a mere statute of Congress could not be pleaded as a justification, if the act could be shown to be unconstitutional and void. In such a case the state court not only may, but it must, pass upon that question, and certainly what would be bad as a plea to an action for false imprisonment would also be bad as a return to a habeas corpus. The distinction is between a judicial writ or proceeding and a mere legislative enactment. The former is a valid authority for an arrest, because in the course of the proceeding the constitutionality of the act can be examined and determined. The latter confers no authority if it be a nullity on constitutional grounds. Stated in a form perhaps still more elementary, the distinction is between a lawful and an unlawful imprisonment. An imprisonment is lawful under a writ issued or sentence pronounced by a magistrate or court having jurisdiction. It is unlawful if only a void law can be shown in justification. So it is unlawful although the statute be valid, if the person detained under it is not within its provisions, as in the case of minors enlisted into the military service of the United States, and it has never, unless very recently, been doubted that in such cases the state tribunals may on habeas corpus inquire into the legality of the detention. Vide Commonwealth v. Har rison, 11 Mass. 63; Same v. Cushing, Id. 67; Same v. Chandler, Id. 83.

2. Writ of homine replegiando. The New York Revised Statutes (c) provided for relief under the common-law writ de homine replegiando, in favor 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. It is formally abolished by statute in Mississippi. (d) Though it was the only remedy at common law for unlawful imprisonment, Sergeant Maynard said (e) 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. (f)

(c) Vol. ii. p. 561.

(d) R. C. of Mississippi, 1824, p. 224.

(e) King v. Lord Grey, 2 Show 218.

(f) Jack v. Martin, 12 Wendell, 311; S. C. 14 Wendell, 507. 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 labor 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 jail 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 dischaged. 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.2 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

2 It should appear before making the arrest, by a complaint in writing on oath, that a crime has been committed in the foreign state; that the accused has been charged in that state with the commission of such crime, and that he has fled from such state and is found here. In the matter of Heyward, 1 Sandf. (N. Y.) 701. See, also, 1 Parker, C. R. 429.

The Massachusetts Statutes, (g) in 1835, made special provision for the writ, and gave it whenever any person was restrained of his liberty, or held in duress, unless by virtue of some lawful process issued by competent authority; and if it should appear, by the return of the writ, that the defendant eloigned the plaintiff's body, the latter was to be entitled to a writ of capias in withernam to take the defendant's body. (h)

summary process. See Constitution U. S. art. 4, sec. 2, No. 3; Act of Congress, Feb. 12th, 1793, ch. 7.8

(g) Part 3, tit. 4, c. 111. The provision was so reported by the commissioners for the revision of the statute law of Massachusetts, but it was eventually struck out, and the writ de homine replegiando abolished. Revised Statutes of Massachusetts

sec. 38.

(h) The commissioners admitted that the writ of habeas corpus furnished so complete and effectual a remedy for all cases of unlawful imprisonment, that the other writ was seldom used. They thought, however, that it might be convenient and even necessary, when a person was seized without legal process, as an apprentice or servant, or as held to labor or service in another state, or as the principal for whom another is bail. This writ of personal replevin enabled the person under restraint to try his right to immediate personal liberty before a jury, by presenting an issue in fact, and which the remedy under the writ of habeas corpus does not; and the legislature of Massachusetts, in 1837, revived in substance the provisions of the writ de homine replegiando, in a bill "to restore the trial by jury on questions of personal freedom." See on S. P. vol. i. 404. The legislature of Indiana, in 1824, and of Vermont and New Jersey, in 1837, and of Connecticut, in 1838, also provided the trial by jury, if either party demanded it, in the case of the claim of fugitives from labor. The doctrine in Jack v. Martin seems therefore to be borne down in the non-slaveholding states by the force of legislative authority. But the decision of the Supreme Court of the United States, March 1, 1842, in the case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters U. S. 539, has restored and established the construction given to the act of Congress of 1793, in the case of Jack v. Martin. It declared that

3 It was held in Lemmon v. People, 26 Barb. (N. Y.) 270, that this provision of the constitution is confined to persons held to service or labor escaping from one state to another, and does not extend to the case of a person brought voluntarily by his master into another state; and that by a statute of New York, (Rev. Stat. part 1, c. 20, tit. 7,) slaves brought into New York from a slave state, solely for the purpose of there being put on board of a vessel to be carried to a slave state, become free immediately upon their arrival in New York. This case was affirmed by the Court of Appeals, 20 N. Y. 526, three judges out of eight dissenting. Clerke J., held the statute to be contrary to the constitution of the United States. Comstock and Selden JJ., without coming to any positive conclusion as to the constitutionality of the statute, held, that it was contrary to the principles of comity and justice, which ought to regulate intercourse between the several states. And in Sidney v. White, 1 Sneed (Tenn.) 91, it was held, that after the certificate of a United States judge, under the act of Congress of 1793, and delivery to the claimant, the state courts of the state, in which this summary process is instituted, have no jurisdiction to try the right of the alleged slave to freedom.

In England, the regular consequence of personal liberty is said to be, that every Englishman may claim a right to abide in his

the act of Congress of 1793 was constitutional, and passed in pursuance of an express provision in the constitution of the United States; it excluded all state legislation on the same subject; and that no state had a right to modify it by its own legislation, or impede the execution of any law of Congress upon the subject of fugitive slaves. This decision renders void all statute regulations in the states on the subject. Several of the judges who were in the minority thought that the power of Congress was not so exclusive, but that state legislation might act in aid of the power to seize and recapture fugitive slaves. The decision in the case of Prigg v. The Commonwealth of Pennsylvania has unintentionally thrown much difficulty and hazard in the way of efforts by the owners in the slave states to reclaim in the free states their fugitive slaves. That decision went to silence and render inoperative and void all provisions and aid in the free states in respect to the recovery of such slaves. The state governments are not content to remain passive, and leave unembarrassed the free operation of the provision of the act of Congress. The Supreme Court of the United States in the case of Prigg admitted that state magistrates might, if they chose, and were not prohibited by state legislation, exercise the power of arrest given by the act of Congress, and in aid of it. But such permission is withdrawn by state law in some of the states, and adjudged to be illegal. Thus, in Ohio, the act to prevent kidnapping, (Swan's Statutes, p. 600,) prohibited the arrest and carrying out of the state of fugitive slaves until they had been taken before a magistrate and proof of property exhibited. But the Supreme Court of that state, in Richardson v. Beebe, (Law Reporter for November, 1846,) held that the decisions in Prigg rendered null and void all state aid and legislation to interfere with the owner's right of caption in person or by his agent, and that the state act had become inoperative and null. So the decis ion in the Circuit Court in the city of New York, in the matter of George Kirk, (Law Reporter, No. 9, p. 361, for December, 1846,) was to the same effect, and it was adjudged that the Revised Statutes of New York, (N. Y. R. S., 5th ed., p. 921, scc. 10,) making provision on this subject in favor of the arrest and surrender of fugitive slaves concealed on board of a vessel without the knowledge of the captain, was unconstitutional and void. The court in Massachusetts, in the case of The Commonwealth v. Tracy, (5 Metcalf, 536,) held that the states might secure their peace by causing fugitive slaves to be arrested and removed from their borders for their own security, provided it was not the object or purpose of the state provision indirectly to aid the owner of the slaves in recovering them. The statute of Pennsylvania, in February, 1847, was more stringent in its opposition to all state aid and accommodation in the recovery of fugitive slaves. It is made highly penal for any state magistrate to take cognizance of the case of a fugitive slave, or grant any process or certificate in relation thereto. It is also made highly penal for any person claiming his fugitive slave to seize, or attempt to seize, or carry him away "in a violent, tumultuous, or unreasonable manner, so as to disturb or endanger the public peace"; and that it should be unlawful and highly penal for any jailer or keeper of a prison to use any jail or prison for the detention of such fugitive slaves. The judges are likewise authorized at all times to inquire, under a writ of habeas corpus, into the cause of the arrest or imprisonment of any human being. The act of 1780, allowing the owners of slaves to bring in and retain them within the state in involuntary servitude for a transient period, is repealed.

See Moore v. Illinois, 14 How. U. S. 13, where Prigg's case is explained by the

court.