the imprisonment complained of is illegal; and whether the inquiry is had in the first instance on the application or subsequently on the return of the writ, or partly on the one and partly on the other, it must depend upon the same facts and principles and be governed by the same rule of law. It was upon these grounds that we said and we now repeat that when it appears from the party's own showing in the petition, that if brought be fore the court he would not be entitled to a discharge, the court will not issue the writ."" The same general doctrine has been recognized in other cases." The same general rule, it is supposed, applies where 225] the application is to a judge in vacation, unless *the inquiry before him is restricted by statute, or he is subject to penalties for refusing it. 5. When it must be granted.'-1st. It cannot be denied where "a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered," for the writ then becomes a "writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty, though it be by the command of the King, the Privy Council, or any other." In Arkansas, where a judge of the Circuit Court denied the writ on the application of a guardian for his 1 Sims' case, 7 Cush. 285. Ex parte Kearney, 7 Wheat. 38; Commonwealth v. Robinson, 1 Serg. & R. 353; Ex parte Campbell, 20 Ala. 89; see also Ex parte Pardy, 1 Lowndes, Maxwell & Pollock, 16; Ex parte Williamson, 4 Am. Law Reg. 27; In re Gregg, 15 Wis. 479; In re Griner, 16 Wis. 447; Ex parte Bushnell, 8 O. S. 599; Ex parte Milligan, 4 Wall. 2. Where probable ground is shown that the party is in custody under or by color of the authority of the United States and is imprisoned without just cause, and therefore has a right to be delivered, the writ of habeas corpus then becomes a writ of right, which may not be denied. In matter of Winder, 2 Clifford, 89. 4 3 Black. 132. ward, under an erroneous opinion that he had no jurisdiction to grant it; the Supreme Court, on that being returned by the judge to an alternative mandamus as the ground of his denial, ordered a peremptory mandamus, requiring the judge to grant the writ, &c.' 2d. It cannot be denied where the granting of it is made a matter of imperative duty by statute.' By the 10th section of the act, 31 Car. II., it was provided that: "If the said lord chancellor or lord keeper, or any judge or judges, baron or barons, for the time being, of the degree of the coif of any of the courts aforesaid" (being the same officers who by the 3d section were required to grant the writ), "in the vacation time, upon view of the copy or copies of the warrant or warrants of commitment or detainer, upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of habeas corpus, by this act required to be granted, being moved for as *aforesaid, they shall severally [226 forfeit to the prisoner or party grieved the sum of £500, to be recovered in manner aforesaid." In many of the states, also, a wrongful denial of the writ subjects the judge or officer authorized to grant it in vacation to a pecuniary penalty; and in some, the members of a court may incur the penalty for improperly denying the writ in open session. This extension of the penal provision of the English statute was first introduced in the statute of New York, in the Revised Statutes of 1830. The provision on that subject, which is still in force, is as follows: "If any court or officer, authorized by the provisions of this article to grant writs of habeas corpus or certiorari, shall refuse to grant such writ when legally 1 Wright v. Johnson, 5 Pike, 687. The provision in most of the states is that the writ shall be granted without delay, upon the proper showing. applied for, every member of such court, who shall have assented to such refusal, and every such officer, shall severally forfeit to the party aggrieved one thousand dollars."'1 Chancellor Kent, speaking of the extension of the penal provision to members of the court, says: "The penalty for refusal to grant the writ was by the English statate confined to the default of the chancellor or judge in vacation time; whereas the penaly and suit for refusal to grant the writ applies, under the New York statute to the judges of the Supreme Court in term-time. This is the first instance in the history of the English law that the judges of the highest common law tribunal, sitting 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." 227] *In the case of Yates v. Lansing,' the allowance of the writ by a judge in vacation was said not to be a judicial act, and that the judges were made responsible when they refused in a mere ministerial capacity to allow the writ. But the act under the statute is the same in both cases, and if the penalty is degrading when applied to a member of the court in term-time, it is no less so when applied to him in vacation. It is plain that the penalty may be avoided in all cases. If the law requires the court or judge to examine the commitment, and grant or refuse the writ according as he finds treason or felony plainly expressed in it or not, and then punishes him for refusing it when he should have allowed it, the court or judge will be very apt to act upon the hint of the Chancellor of Delaware, in the case of The State v. Munson:* 12 Fay's Digest, 122. 2 1 Kent, 634. 35 Johns. Rep. 282; People v. Nash, 5 Parker's C. R. 473; Nash v. People, 36 N. Y. 607. Hall's Jour, Juris. 257. "If," said he, "the party is imprisoned for treason or felony, the species whereof is plainly and fully set forth in the warrant of commitment, he is not even entitled to the writ in vacation; though it would not be prudent to refuse it, not knowing the opinions of those who might have to decide the question on a suit for the refusal." In Arkansas and Missouri,' the courts, as well as judges in vacation are subject to penalties not only for refusing the writ, but also for unreasonably delaying to issue it. In Pennsylvania, Kentucky, New Jersey, North Carolina, South Carolina, Georgia, California,* the penalty applies only to a refusal of the writ by a judge in vacation or at chambers. *In Ohio, Connecticut, Virginia, Texas, New [228 Hampshire, the statutes are silent as to any penalties in any case of refusal of the writ.' SECTION III. SECURITY FOR COSTS AND AGAINST ESCAPE. By the act 31 Car. II., the officer to whom the writ was directed was required to make return of it within three days after the service thereof, "upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and endorsed upon the writ, not exceeding 12 pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be So in Tennessee, Michigan, Iowa, New York, Delaware and Maryland. So in Nevada, Mississippi, Wisconsin, Illinois, Minnesota and Nebraska. The statutes are likewise silent in Rhode Island, Kansas, Vermont, Maine, West Virginia, Alabama, Florida and Oregon. brought, according to the true intent of this present act, and that he will not make any escape by the way.' It was held, however, that the omission of the prisoner to tender the fees due to the gaoler was no excuse to him for not obeying the writ, though it was said the court would not discharge the prisoner when brought up till the fees were paid.' In Massachusetts, where the party is confined in a common jail or in the custody of any civil officer, the costs of bringing him from the place of confinement must be paid or tendered, or the officer is not bound to obey the writ." In some states, however, a discretion is vested in the court or judge to exact security. 230] *SECTION IV. ALLOWANCE OF THE WRIT. 1. Mode of allowance. 2. Notice of allowance. 1. Mode of allowance. Where the writ is awarded by the court in term, the fact is shown by an entry upon its journal. When it is awarded by a judge in vacation, the fact is shown by an order under his hand, indorsed usually upon the petition. The act of 31 Car. II. provided that the writ, when granted according to its provisions, should "be marked in this manner: 'Per statutum, tricesimo primo Caroli secundi Regis,' and be signed by the person that awards the same, and to the intent that no sheriff, gaoler or other officer may pretend ignorance of the import of any ch writ." 1 Bac. Abr., Hab. Corp. B., sec. 8. |