law as their guide. What that was may be seen by reference to the preceding pages.'

The Supreme Court of the United States have pronounced no opinion upon the point, but it has recently been under examination in some of the Circuit and District Courts.

In the case Ex parte Jenkins et al.,' the Circuit Court, Grier of the Supreme Court and Kane district judge, held: That in the case of an arrest on state process, whether issued in a criminal prosecution or a civil action, of an officer of the United States, for an alleged abuse 278] of his powers, *this court, acting under the act of Congress, of 2d March, 1833, will not only hear evidence to disprove the truth of the affidavits, upon which the state authorities proceeded, but will independently of such proof consider the affidavits; and if in the judgment of this court those affidavits do not contain a prima facie ground for arrest, will discharge the federal officer. Also, if an officer of the United States has been arrested to answer an indictment found by a state court for riot, assault and battery and assault with intent to kill, the indictment not showing that the alleged offences were committed while the officer was professing to act under a law of the United States, or under some order, process or decree of some judge or court thereof, this court, on a habeas corpus, where the petition of the officer denies the offence and avers that what is alleged as offence was done in proper execution of an order, process or decree of a federal court, will go outside the indictment, and hear evidence to show the truth of the facts set forth by the officer.

Mr. Justice Grier conceded that, if they were acting upon a habeas corpus issued under the Judiciary Act of 1789, the return of the warrant of commitment, under the proviso to the 14th section, would be conclusive.'

1 See provision of the Rev. Stats. of the United States upon this point, infra. 22 Wallace Rep. 521.

3 Ib. 527.

In the case of Nelson & Graydon v. Cutter & Tyrrell,' the defendants being arrested on a capias ad respondendum, were brought up on a writ of habeas corpus, and discharged because of a defect in the affidavit upon which the writ issued. It was objected, on the hearing, that the return of the capias *was conclusive; but [279 the court said that the writ could not lawfully issue without an affidavit, and that they would not presume against personal liberty the existence of a sufficient affidavit, and so required it to be read. The affidavit was held defective because the indebtedness was sworn to only upon the "information and belief of the affiant." He was the agent of the plaintiffs.

In Ex parte Smith,' the prisoner was in custody under a warrant of extradition. On habeas corpus he offered affidavits to show an alibi at the time of the committing the alleged offence. It was objected that the return could not be controverted, and the court declined to decide the question, as there were other sufficient grounds for discharging the prisoner.

It has been seen that the bill to render the jurisdiction in habeas corpus more remedial in cases not within the act 31 Car II., which was before the House of Lords in 1758, was lost in consequence of the earnest opposition of Lord Mansfield. In the debate upon the bill he contended that the courts and judges possessed at common law all the jurisdiction in such cases which was proposed to be given by the bill. In his subsequent administration of the law in habeas corpus in such cases he seems to have acted upon that conviction; and it is perhaps owing to the liberal practice which he adopted that the rejected bill was suffered to sleep for more than half a century.

2. In the State Courts. The seeds, however, which had been sown in the discussion upon the bill, sprang

13 McLean, 326.

93 McLean, 321.

280] *up and yielded appropriate fruits in American law long before the passage of the statute of 56 Geo. III. Pennsylvania. In 1785 the legislature of Pennsylvania, in the 13th section of their habeas corpus act, adopted the proposed amendment of 1758, and in the words of the rejected bill. By the 1st section of this act, it is provided that when the prisoner stands committed or detained for any criminal or supposed criminal matter, the court or judge before whom he shall be brought on habeas corpus, shall, within two days, discharge him from imprisonment, taking his recognizance, with sureties for his appearance at the next court of Oyer and Terminer, &c., "unless it shall appear to the said judge or justice, that the party so committed is detained upon legal process, order or warrant, for such matter or offence, for which by the law the said prisoner is not bailable." So far it follows substantially the act 31 Car. II., but it proceeds to add new and important provisions, and that the said judge or justice may, according to the intent and meaning of this act, be enabled by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded or discharged, the return may before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, that thereby material facts may be ascertained."

By the 13th section it is provided that where the detainer is not for criminal or supposed criminal matter, "the court, judge or justice before whom the party so confined or restrained shall be brought, shall, after the 281] return made, proceed in the same manner as *is hereinbefore prescribed, to examine into the facts relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand or discharge the party so brought, as to justice shall appertain.'

The power conferred by this act upon the "court,

judge or justice" is quite sufficient to enable them to hear "suggestions" and evidence, not only in strict contradiction to the precise allegations of the return, which, in cases of imprisonment under legal process, would be to limit the right to controvert the truth of the return very narrowly, but also in disproof of the merits of the cause of detainer.

The courts of the state, however, have found, in the nature of the proceeding, the general spirit and policy of the law in relation to the trial of litigated facts and the necessity of preserving other jurisdictions, indispensable to the administration of justice, uncrippled, certain limitations of their powers under the writ of habeas corpus.

"On a habeas corpus the court is called on 'to examine into the facts relating to the case,' and therefore must necessarily determine contested facts. If it were doubtful whether the true person was arrested, they consider themselves as necessarily bound to submit the matter to the decision of a jury; but where there was a plain mistake they would not do what 'appertains to justice,' unless they interposed for the immediate relief of the confined party."

They will not grant the writ for error or irregularity merely in the judgments or process of other *courts [282 in civil or criminal cases."

They will look beyond the commitment in a criminal case, and hear extrinsic evidence, and go into an examination of the facts, in order to ascertain whether or not there is sufficient cause of suspicion against the prisoner, and will commit or bail him when there appears to be, on such examination, probable cause for suspecting him of an indictable offence, and will discharge him when there does not."

1 Respublica v. The Gaoler of Philadelphia, 2 Yeates, 258.

22 Yeates' 349; 4 Sergt. & R., 149; 1 Watts, 66; 7 Watts & Sergt. 108. 32 Par. Sel. Cas. 317; Vaux Rep. 40, n. Id. 206 Commonwealth v. Ridg. way, 2 Ashm. 247.

In Com. ex rel. Chew v. Carlisle, Bright. 36, the relators, who were "master ladies' shoemakers," were committed on a charge of conspiring not to employ any journeyman who would not consent to work at reduced wages.

On the motion to discharge,

Gibson, J., said: "Unless it clearly appears that a prisoner brought up on habeas corpus is entirely innocent, the judge is bound to bail or remand. But difficulty or hesitation as to the law, arising from facts indisputably established is not that kind of doubt of guilt which justifies in refusing to discharge, where the mind inclines, after full consideration, to pronounce in favor of innocence. On all questions of law arising in the course of the investigation the prisoner is entitled to the benefit of the judge's decision, and although he may regret the necessity of encountering an unsettled principle without the assistance of his brethren, yet, being legally competent, he is bound to meet all questions of law; for he trifles with the rights of the prisoner and the liberties of the citizen, as secured by the habeas cor283] pus act, when, from timidity, he delegates his *functions to another tribunal, and refuses to decide on the only ground on which the prisoner rests his claim to be discharged.

"The argument, then, that I am bound to remand if I have the least doubt, holds only as to doubt of the truth of the facts in evidence, with respect to which the commonwealth, as well as the prisoner, has a right to go before a grand jury, who are the constitutional judges in that particular."

After adverting to the evidence upon which the prosecution was founded, he proceeds:

"It would be an assumption of the question to say it is criminal to do a lawful act by unlawful means, when the object must determine the character of the means. It must therefore be obvious that the point in this case is, whether the relators have been actuated by an im