In the cases, however, of The People v. Tompkins,' and The People v. Martin,' the question was very fully examined and the authorities reviewed by Mr. Justice Edmonds, of the Supreme Court, who held that the Supreme Court, in the exercise of its common law appellate jurisdiction in criminal matters, and any member of it out of court, under the statute might, where the commitment was by an examining magistrate before trial, not only review the grounds of commitment upon which the magistrate acted, but hear new proofs, and bail, discharge or remand the prisoner as the justice of the case might require. But the judge admitted that the power was subject to important qualifications. "In thus asserting and defending," said he, "the high prerogative of administering relief against unjust im*prisonment, as existing in this court at common [289 law and in its members out of court, under the statute, I must not be understood as maintaining that the appellate power thus conferred can or will be exercised in a wild or loose or arbitrary manner, or that an appeal exists as a matter of course in every case of a commitment, with a right to demand a review of the grounds of the commitment. "Where the party is in custody, by virtue of a final judgment of a court of competent jurisdiction, he must be immediately remanded.' If the party is in custody on an indictment found for felony not bailable, there being no means of ascertaining the grounds on which the indictment is predicated, he will be remanded.* "If in custody on process merely irregular, he will be remanded on habeas corpus, and be remitted to the 1 1 Parker Cr. Rep. 224. 2 Ib. 187. 8 2 R. S. 567, sec. 40. 4 McLeod's case, 25 Wend. proper court to correct and remedy the formal defects in its own process." 1 "If detained on civil process, regular and valid on its face, the examination will be confined to the jurisdiction of the power which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner to his discharge." "If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original dispositions be looked into, to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion, upon the evidence given before him; whether he may not have been governed by malice, or have exceeded his jurisdiction; and whether he may not have mistaken the law, or, in the language of Lord Ellenborough, in the case of Sir Francis Burdett against the 290] Speaker of the House of Commons,' *to ascertain whether the commitment was not palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice. Confined within these limits, the inquiry can be effectual for the protection of personal liberty against oppression under color of legal process. Extended beyond it, might be eminently mischievous in retarding the due administration of justice, and therefore, though the power of exceeding those limits is clearly conferred, no discreet judge will step over them, unless for some palpable and overpowering cause." 1 People v. Nevins, 1 Hill, 154; Bank of U. S. v. Jenkins, 18 Johns. 305. THE issue may be one of law simply, as where the facts stated in the return are not controverted. Mr. Justice Wilmot, although he maintained that the nature and quality of the fact with which the party is charged and the jurisdiction which has taken cognizance of it are the only matters to be considered on the return, and that the existence of the facts stated in it could not be controverted, correctly described the issue of law. "The writ," said he, "is not framed or adapted to litigating facts; it is a summary, short way of taking the opinion of the court upon a matter of law, where the facts are disclosed and admitted; it puts the case exactly in the same situation as if an action of false imprisonment had been brought, and the defendant had set forth the facts to justify the imprisonment and the plaintiff had demurred to the plea." Motion to discharge. This issue may be made and usually is on motion, though in the case of Hovey *and [292 1 In habeas corpus where the petitioner alleges imprisonment by the respondent, under a specific claim of authority and an exemption in law by reason of certain stated facts, and the respondent asserts the authority, and admitting the facts stated denies the legal exemption set up, there arises a simple issue of law which must be tried by the case made, and no fact dehors the record can bo legally considered. Camfield v. Patterson, 33 Geo. 561. Wilmot's Opinions, 106. wife . Morris,' a demurrer to the reply was allowed. Where it is desired to test the sufficiency of the return in law, it may be done on a motion to discharge the prisoner, which has the effect of a demurrer. On this motion the return is conceded to be true. "The return,' said Lord Denman, in Watson's case," "must neces sarily be received as true in all particulars that appear upon it in the present stage, in which its sufficiency alone is examined. We are sitting as on a demurrer, or a writ of error on the judgment of another court." SECTION II. ISSUES OF FACT AND LAW. The issue may be one of fact and law, where the facts stated in the return are either controverted or confessed and avoided. It has been seen that the facts stated in the return may be controverted; but the issue to be raised must have a necessary connection with the question of the legality of the imprisonment. It has sometimes been attempted to bring into consideration other matters, as will be seen hereafter, but they have been uniformly rejected. It is important, therefore, to note the class of facts which may properly be put in issue. The field of inquiry on this point of practice has not been accurately defined, and some obscurity has been occasioned, perhaps, by not sufficiently attending to the true nature of the writ and the questions which it necessarily involves. 17 Blackf. 559. 236 Eng. C. L. 237. 3 In case of Booth v. Ableman before the courts in Wisconsin, the return was demurred to. 21 How. 506. But in Indiana it was held that a demurrer was not the proper method of testing the sufficiency of a return. Cunningham v. Thomas, 25 Ind. 171. Neither can it be excepted to. Nichols v. Cornelius, 7 Ind. 611. *The following rule, it is believed, correctly de- [293 scribes the nature of the facts which may be controverted. Where the commitment is under express legal process, those facts may be put in issue which, on a a question arising only collaterally, are necessary to warrant the imprisonment; and where the restraint is claimed under private authority those facts may be put in issue which are legally necessary to justify the detention.1 As before remarked and as there will be occasion to repeat, the object of the writ is to liberate from illegal restraint. The vital question in all cases of habeas corpus, is: Is the party complaining illegally deprived of his liberty and it is the only material question except in cases of infants or persons accused of crimes where, in certain contingencies to be hereafter noticed, relating to the disposing of the prisoner or infant, certain additional inquiries are instituted." It is important also to observe that only such questions as are necessarily involved will be determined. It is, indeed, frequently said that the right of guardianship, for instance, will not be determined on habeas corpus." But that depends entirely on whether restraint by the guardian is made the ground of complaint. If it is, the right must be passed upon. Thus if the ward be the relator seeking to be released from the custody of his guardian the guardian may stand upon his right of guardianship; the ward may dispute the right, and the court must say whether the guardian's custody is wrongful or not. 1 Where an apprentice applied for a writ of habeas corpus, and the respondent set out an order of a court binding the petitioner to him, it was held that it might be replied that the order was void. The court said, the order might be proven to be void either by showing the petitioner was not such person as the court had the power to bind out at all, or that he had no notice of the proceedings against him, and therefore no opportunity of being heard. In the matter of Ambrose Phil (N. C.), 91. * The State v. Banks, 25 Ind. 495. 3 People v. Wilcox, 22 Barb. 186; Ferguson v. Ferguson, 36 Mo. 197. |