THE trial has always been to the court or judge and hence is commonly called the hearing. Although the trial of questions of fact under the writ by the court has been deprecated as infringing the right of trial by jury,' yet the inconvenience and delay consequent upon the jury trial; the desire of prisoners to obtain and of the judges to afford instant relief in cases of wrongful imprisonment, to which, perhaps, should be added the common opinion that an order in habeas corpus had not the force and effect of a final judgment, have overcome all objections, and the practice has long been settled in England and America of submitting all questions arising under the writ to the determination of the court.

The provisions in the Constitution of the United States and of the several states, for the inviolability of the right of trial by jury, do not extend to *proceed- [300 ings in habeas corpus as it has sometimes been claimed. It is not provided in the constitution of any state that all issues of fact shall be tried by a jury. The provision in all is that the right of jury trial shall not be violated; that is, the right as it was understood and enjoyed

1 Wilmot's Opinions, 106.

And as

at the time of the adoption of the constitution. such trial was not then demandable as a matter of right in a habeas corpus proceeding, any more than it was in a proceeding in equity, it is not now. It is, however, within the power of the court, perhaps, in the exercise of its discretion, to direct an issue of fact under the writ to be tried by a jury. This has sometimes been done but the practice has not met with general favor.

The mode of trial has been the subject of observation in several cases.

In the matter of Hakewell,' there is an intimation that a jury in some cases might be employed. That was a habeas corpus by the mother to obtain possession of her children from their father, and consequently was conducted under the provisions of the act 56 Geo. 3, c. 100, which enacts, section 3, "That in all cases provided for by this act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron, before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in the return by affidavit, &c., and do therein as to justice shall appertain." Jervis, Ch. J., alluding to the doubt expressed in the case of Watson,' whether there may be any mode, other than by ac301] tion, of impeaching the truth of such return or *of introducing new matter, says: "I must confess I should have thought it was competent to the party, at whose suit the writ is obtained, to impeach the return upon affidavit, or to traverse it and go to a jury, or to argue upon the return that it does not justify the detention."

In New Jersey, an application to the court to empannel a jury to ascertain the facts in a case of habeas corpus, was refused as early as 1782. In the case of The State v. Farlee, the application was renewed in the year 1790, when it was again refused. The court said: "We have no power in such a case to order a jury. * * * The writ

1 xxii. Eng. Law and Eq., 395.

236 Eng. C. L.

3 Coxe, 41.

is a writ of right, intended for the protection of individuals against arbitrary and illegal detention; and we are to decide upon it in our own constitutional capacity, sitting here to superintend the liberty of the citizen, and to protect it from violation." To the same effect is the case of The State v. Beaver et al.,' in the year following. In Pennsylvania, however, in 1798, it was said by the court in the case of Respublica v. The Gaoler, &c.,' that "We are called on to examine into the facts relating to the case and must, in some instances, necessarily determine contested facts. If we had any doubt whether the true person was arrested, we should hold ourselves bound to submit the matter to a decision by a jury."

In the case of Graham v. Graham, in 1815, on a habeas corpus pending in the court of Common Pleas of Philadelphia county, *the court ordered an issue [302 to try whether a certain Edward Simmons had a right to hold Shepherd Graham by virtue of an indenture of apprenticeship, whereby the said Shepherd was bound to the said Simmons until he attained the age of fifteen years, to be instructed in the art of chimney sweeper. A verdict was given in favor of Simmons, which was set aside and a new trial ordered. On a second trial the jury found against Simmons, but a bill of exceptions was taken.

In the Supreme Court,

Tilghman, Ch. J., said: "The habeas corpus act (1785) authorizes the court to decide both fact and law; but it has been the practice in the Common Pleas to direct an issue for the trial of facts in doubtful cases. The right to order an issue is not denied, but it is said that when an issue is ordered, the court have parted with all their power over the facts. It is true they have so far parted with their power that they cannot themselves decide the fact. But they still retain the super

1 Coxe, 80.

92 Yeates, 258.

8 2 Dall. St. Laws, 246, sec. 13.

4

1 Serg. & Rawle, 331.

intending authority over the verdict. This authority is incident to the trial by jury by the principles of the common law, where the trial is in a court of record of general jurisdiction, such as the court of common pleas."

In Vermont,' it was said that where a debtor, who has been imprisoned, grounds his claim to be discharged upon certain papers or documents prescribed by statute, he may enforce his right by habeas corpus; but where he grounds it upon matter in pais, upon which an issue to a jury might be expected to arise, he should be put to his audita querela.'

303]

*SECTION II.

THE EVIDENCE.

1. General observations.

2. Evidence in summary proceedings.

3. Competency of witnesses.

4. Evidence by affidavit.

1. General observations. The general nature and principles of evidence, the means or instruments by which it is conveyed, and the rules which govern its production in courts of justice, afford the most attractive, if not the

1 Ex parte Davis, 18 Vt. 401.

2 In Baker v. Gordon, 23 Ind. 209, the court said, "It has been the practice in this state, as well before as since the adoption of our constitution to try the issues of fact in habeas corpus cases by the court or judge, without a jury. Such a proceeding is not a civil case within the meaning of section 20 of the bill of rights. * * * The habeas corpus act which is substantially the same as all previous acts on this subject, by providing for a hearing before a judge in vacation shows that it is a proceeding not embraced in this clause of the bill of rights; that it is not a civil case, and the hearing not a trial, but like a contested election, it is just what it is called, 'the writ of habeas corpus.' See French v. Lighty, 9 Ind. 475." Garner v. Gordon. 41 Ind. 101. In the latter case it was also held that a proceeding by habeas corpus was not a civil action, within the meaning of the section of the Indiana Code authorizing a change of

venue.

most important field of inquiry in the whole domain of legal science; and it has been thoroughly cultivated by skilful hands. The treatises of Starkie, Gresley and Greenleaf, and Cowen and Hill's Notes, with a treatise by Phillips, leave but little room for further research in this department of the law.

If the various rules collected and expounded by these authors, whose works are within the reach of all, were of uniform application in all judicial proceedings, there would be no occasion, and, perhaps, no excuse for doing more than to refer to them. But these rules are not applied with equal strictness in all cases. They admit of some relaxation in summary proceedings, especially where the inquiry is addressed to the discretion of the court.

The proceeding in habeas corpus is summary in its nature. The common opinion has been that the order pronounced in it was not subject to review on error as a final judgment; and for this reason, perhaps, as well as from the fact that the trial was always to the [304 court without the intervention of a jury, the same modification of the rules of evidence has been allowed in practice under this writ which has obtained in other summary proceedings addressed to the discretion of the court.

It is not, indeed, a settled question that an order in habeas corpus is not, in some instances, on common law principles, subject to review for error. It is probable that the common impression to the contrary will be found to be unsupported by the just analogies of the proceeding and order. The tendencies of the judicial mind, as will be seen hereafter, are certainly in this direction. But it is not probable that the rules of evidence applicable to the proceeding will undergo any change on that account.

There are numerous

2. Evidence in summary proceedings. applications to the court, in civil and criminal cases, which are addressed to the discretion of the court, upon