(Pember's Case.)

as a place of confinement for convicts from the western section of the state by the 5th section, the inspectors, county commissioners, and others named, are authorised to sell the prison and lots on which it is situated on Walnut and Prune Street. The 6th section declared, that "whenever a sale of said prison and lots shall have been effected, the inspectors shall, as soon as conveniently may be, cause all persons then confined therein, to be removed to the new prison on Mulberry-Street, and there safely kept, fed, clothed, treated and dealt with according to law, and to continue them therein until duly discharged, or removed to such other penitentiary or prison, as shall be erected for their reception and safe-keeping." And section 7th authorised the purchase of a suitable lot for a new penitentiary: section 8th authorised the inspectors to erect on the lot so purchased, a new penitentiary or public prison adapted to the solitary confinement of convicts.

The prisoner was tried and convicted since the enactment of this law. The prison on Walnut and Prune Streets has been sold. The prisoner has been removed to the prison on Arch-Street: a new penitentiary has been erected; and by the act of 28th March, 1831, (section 6,) it is provided, that the inspectors of the jail and penitentiary, on the first Monday in April, 1833, or as soon thereafter as conveniently may be, shall remove all the convicted criminals, who may remain in the said jail and penitentiary, to the state penitentiary for the eastern district, there to be imprisoned, kept and punished according to law and their several sentences, until duly discharged; with a proviso that the penitentiary be then prepared for their reception.

Applications to a Court on habeas corpus are made by persons under very different circumstances. A person may apply who is restrained or deprived of his liberty, without any cause justifying such restraint; and on this appearing the person is ordered to be discharged. In the present case, the prisoner is confined under a sentence or sentences of a competent Court of record; which sentences are in due form of law, not even complained of; but the application is founded on the allegations, that the prisoner could not have been legally removed to the prison on Arch street. It was not contended and could not be with propriety, that when a prison was too small or too insecure, the Legislature could not authorize the building a new one, and direct the prisoners to be removed to it. There was

however, a mistake of fact in supposing there was no law expressly authorising the removal of persons convicted of crime to the Arch street prison. There are at least two express acts on the subject above cited.

A

Another ground was taken, viz. that the prisoner is not kept at hard labour; and further, that the prison as it now is, is not adapted to keeping prisoners at hard labour. This then presents the case of a person legally confined, but who alleges he is not legally treated. If the

(Pember's Case.)

keepers misbehave, by using undue rigour or imposing hardships or severities on the prisoner not authorised by law, they may be punished by a proper proceeding, before the proper tribunal; or if the misbehaviour consists in undue indulgence, in not imposing on the offender the sentence of the law, they are answerable for such conduct, unless some justifying cause is shown. But in no case, it is believed, will the mistake or misconduct of the keeper give the criminal a right to a total discharge from his sentence: it would amount to giving the keeper and inspectors the pardoning power. It would greatly extend the power of this Court; it would give it the power equivalent to pardoning a criminal, for the strange reason that some other person had been either too severe or too indulgent.

The acts of Assembly cited, would seem to be express that all prisoners in the Walnut-street prison should, when it was sold, be removed to Arch street prison, and as soon as the cells in sufficient number were ready for their reception, the convicts should be removed to the Eastern penitentiary. It is not among the facts submitted to us, but it seems to be assumed that it is now completed; and some part of the argument went to the question whether the prisoner could, if sent there, be kept at hard labour, separate and apart from all others—I repeat that this matter cannot be now legally before us; but I will suggest some considerations which may be useful to those taking an interest in these matters.

It has appeared that by the act of 5th of April, 1790, the hard labour to which offenders were to be sentenced, was to be performed separate and apart from each other, so far as the same could be effected or the nature of the labour would admit. The act of 1794, in sections 10 and 11, applies to convicts sentenced in counties other than Philadelphia, and applies to persons convicted of any crime, (other than murder in the first degree,) which now is, or on 15th of September, 1786, was capital or felony of death; or of uttering counterfeit coin of the United States, or of counterfeiting or uttering, or uttering or passing, knowing them to be counterfeit, the notes of the bank of Pennsylvania, bank of North America, or bank of the United States. Now the prisoner is convicted on indictments for passing counterfeit bank notes, and on one for stabbing with intent to kill and murder. The last is not within the act of 1794, it was never capital or felony of death; and the whole law respecting counterfeiting coin, and forging, or passing forged bank notes, was changed by the act of 25th of March, 1824; and the person convicted of this offence is to be sentenced to hard labour for a period not exceeding ten years nor less than one year, fined not exceeding 1000 dollars, and to be kept, treated and dealt with in all respects as other convicts now are, or may hereafter be, by law. The prisoner committed his crimes and was convicted and sentenced after this law was enacted; and is subject to its provisions.

He was then rightly removed from Walnut-street prison to the

(Pember's Case.)

prison on Arch-street; and if the Eastern penitentiary is prepared for the reception of convicts, he ought to be removed to it-if there is room-there to be " imprisoned, kept and punished according to law and his sentence." But we cannot discharge him, or do what in effect would amount to a remission of his sentence, even if the keepers or inspectors have been remiss in not having removed him sooner.

Remanded.

[PHILADELPHIA, APRIL 18th, 1836.]

REDDILL'S Case.

HABEAS CORPUS.

A person convicted in the City and County of Philadelphia, and sentenced in 1830, to imprisonment in the jail and penitentiary in that City and County, for a term of two years or more, ought, upon the sale of that prison, to have been removed to the Eastern Penitentiary, and not to the Moyamensing prison; but this Court will not for that cause discharge the prisoner on habeas corpus.

In this case an habeas corpus had been issued to the keeper of the jail of the City and County of Philadelphia, to bring up the body of John Reddill alias John Reading.

The return set forth that the prisoner was confined under two sentences of the Court of Quarter Sessions for the County of Philadelphia, on the 8th of June, 1830, on convictions for larceny. The first sentence was to undergo an imprisonment at hard labour for 3 years, to be fed, clothed and treated as the law directs. The second was for a like term, to commence on the expiration of the former

sentence.

The convict in this case had been confined in the Walnut street prison; but upon the completion of the Moyamensing prison, he was transferred to that building and there kept in solitary confinement.

Mr. Binns, (who stated that he had been requested by the inspectors of the prison to bring the subject before the Court,) cited the acts of 30th of March, 1831, and 14th of April, 1835.

Mr. Dallas, contra.

(Reddill's Case.)

The Arch-street and Walnut-street prisons are both County prisons. This prisoner was one, who by the 7th and 15th section of the act of 1831, was liable to be sent to the Moyamensing prison. Solitary confinement was used in the Walnut-street prison by virtue of the 19th section of the act of 1790; but it is true only in certain specified cases. How far the act of 1831 is constitutional is another question. It does not appear by the return that this prisoner is in solitary confinement; and it is not easy to perceive how this Court can interfere on a habeas corpus. In their characters as visiters, the Judges have a right to inquire into the discipline of the prison; but upon a habeas corpus, the only question is, whether the prisoner shall be discharged or not.

The opinion of the Court was delivered by

HUSTON, J.-It will not be necessary in this case to recur to all the acts of Assembly referred to in the last case.

Early in this century it was contemplated to build a second prison in this city, to be situated on Arch-street; that prison was, after much delay and interruption, built; but before it was completed, laws passed for building a penitentiary for the western counties at Allegheny, and one for the eastern counties at Philadelphia ; and for this and other reasons the inside of the prison on Arch-street, seems never to have been completed on the plan of making it an extensive penitentiary; though by the laws of 1812 and 1818, both of which directed a sale of the old Walnut-street prison, all prisoners in it, when it was sold, were to be removed to the Arch-street prison. The old prison was not sold until 1835, and by that time the Eastern penitentiary was completed; and at that time the act of 28th of March, 1831, had enacted, that all persons convicted in any county in the eastern District of Pennsylvania, and sentenced to one year's imprisonment at hard labour, or more than one year, should be confined in the said Eastern penitentiary; and further had provided by the 6th section, that the inspectors on the 1st of April, 1833, or as soon thereafter as conveniently may be, shall remove all the convicted criminals, who may then remain in the jail and penitentiary, to the aforesaid State penitentiary for the eastern District, there to be imprisoned, kept, &c. &c.

The

Two days after this act, viz. on the 30th of March, 1831, an act passed to build a new prison and debtors' apartment for the City and County of Philadelphia, and for the sale of the Walnut-street prison. 8th section provided, that every person convicted in the City or County of Philadelphia, and sentenced to confinement for one year or less, should be confined in this new prison, if then erected. A supplement to this act was passed on the 14th of April, 1835. The 13th section is a transcript of the 6th section of the last law, except that it

(Reddill's Case.)

embraces the case of all persons convicted in the City or County and sentenced to confinement for any time under two years.

The 15th section provides, that so soon as said prison shall be completed and prepared for the reception of prisoners, it shall be the duty of the inspectors appointed under this act, to cause to be removed to said prison all persons who may be confined in the prison on Archstreet, in the said city, excepting debtors and witnesses; and the said inspectors were thereby authorised to call upon the sheriff of the City and County of Philadelphia, for such aid as they may think requisite to remove said prisoners; and thenceforth, all prisoners, who by the existing laws of this Commonwealth, were liable to be confined in the Arch-street prison, "shall be respectively sent to the Philadelphia County prison, there to be kept in separate or solitary confinement, and fed, clothed and treated according to the provisions of this act, and the rules and regulations to be made by the inspectors in conformity therewith."

This section would seem to be plain and express; but the next section, 16, makes it the duty of the inspectors to remove from the prison in Walnut-street, all criminals who may have been convicted and sentenced in any court of the City and County of Philadelphia, for a term under two years, and remove them to the new prison, there to be kept in solitary confinement at hard labour, and fed, &c. &c. Now, it seems strange that from Walnut-street prison, only such as had been sentenced to confinement under two years, were to be removed; but from Arch-street, all were to be removed to the new prison, without regard to the length of time to which they were sentenced; and the difficulty is not removed by referring to the 6th section of the act of the 28th of April, 1831, for removing all convicts to the Eastern penitentiary. That act was in the view of the Legislature, for in the 18th section they say, "as soon as the prisoners now in the Walnut-street and Arch-street prisons are removed to the Philadelphia County prison and the Eastern penitentiary, as provided in the act of 28th of March, 1828," (there is no act of that date or year on the subject, and it should be 1831,) and by this act," all the rights, powers, and privileges at this time vested in and exercised by the board of inspectors of the jail and penitentiary house of the County of Philadelphia, shall be transferred to and vested in the board of inspectors of the Philadelphia County prison," &c.

After a full and deliberate examination of the several acts, we cannot avoid seeing that there is something like a direction to remove a certain class of convicts to the new city prison; which convicts by other clauses, are directly ordered to be removed to the Eastern penitentiary; and so much is this the case as to excuse, and perhaps justify a removal to either; but we have come to the conclusion that, from all the acts, the construction must in accordance with their general design, and also consistently with the letter, be, that all convicts in confinement, either in Walnut or Arch-street prison, who,