PREFACE.

THE jurisdiction exercised under the writ of habeas cor pus embraces many interesting and important subjects. It is invoked to remove alleged illegal restraint of personal liberty; but as all restraint is not illegal, it be comes important to a ready and just administration of the law, that there should be a clear apprehension of the nature and extent of the right of personal liberty and the limitations to which it may, legally, be subjected.

Restraint may be imposed under legal process emanating from a federal court, or under color of federal authority without process. In such cases it is important to understand the nature and extent of the jurisdiction of the state courts under the writ of habeas corpus.

The restraint may be imposed under legal process emanating from a federal or state court when the legality of the imprisonment may depend on the extent or rightful exercise of the jurisdiction of the court granting the process, or on the sufficiency of the process itself. Process may be irregular and yet the prisoner may not be entitled to be discharged, for the writ of habeas corpus

is not a remedy in all cases of false imprisonment. It may be regular and yet the prisoner may be entitled to be discharged, for the imprisonment under it may, notwithstanding its regularity, be illegal.

The restraint may be imposed under a claim of private authority, and that authority may be denied, or there may be conflicting claims for the custody of the person restrained; and the restraint may be imposed in the exercise of the duty of extradition of fugitives from justice or from service, and in such cases not only the validity of the process employed may be brought in question, but also the constitutional powers of congress and of the states.

Thus, under the writ of habeas corpus, it may become necessary to decide as to the extent and legal exercise of the jurisdiction of a federal court or officer, or of a state court; the validity of legal process in respect to any or all the many grounds on which it is liable to be impeached; the constitutionality of state and federal laws; the right of prisoners to be admitted to bail, and the right and sometimes the expediency of continuing private custody.

This jurisdiction, so extensive and important and, when in competent hands, so beneficent, has in some states been committed to inferior officers not learned in the law; and there have not been wanting magistrates of this class, ambitious of the distinction of Habeas Corpus Judges, who have cherished the pleasing illusion

that, though destitute of every other qualification for the judicial office, they were quite sufficient for a pro ceeding in which the law appeared to them to be concerned only for the release of prisoners. And there have not been wanting magistrates of higher rank, who, though acknowledging their subjection to the law in all other proceedings, have, when acting under the writ of habeas corpus, deluded themselves with the idea that they were, judicially, omnipotent. In such hands there is reason to fear that the law has suffered violation in the discharge of prisoners as often as in the commitments which they have reviewed.

The practitioner who has undertaken to investigate, and the judge who has been required to administer the law under this writ have doubtless, at times, felt a regret that some one had not lessened their labors by a careful collection and methodical arrangement of the principles of law commonly involved in the proceeding, the rules of practice by which it is governed and the decisions wherein they have been applied and illustrated. The profession has, hitherto, been without such aid. The only service of practical value which has been rendered is the learned note in 3 Hill's Rep. 647, by NICHOLAS HILL, Jr., Esq., to which as well as to the encouraging counsel of its generous and accomplished author, I have been greatly indebted. I desire also to express my obligations to FRANCIS WHARTON, Esq., the learned author of the valuable work entitled "American Criminal Law,"

for his interesting article on the extradition of fugitives from justice, found in 6 Penn. Law Journal, 412, which he kindly placed at my service.

The object of the following pages has been to supply a work of the description above indicated, which no one else has found inclination or leisure to execute. With no predecessor in this field to encourage by his success or warn by his failure, I have been compelled in the choice and discussion of the topics considered, to assume the responsibility and incur the risk, and may therefore, perhaps not in vain, ask for the performance the indulgence usually extended to the labors of a pioneer.

ROLLIN C. HURD.

MOUNT VERNON, Ohio, September, 1858.