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preme Court of the United States is a shame and a dis- What about judicial administration and remedial prograce to jurisprudence.
cedure? What about commercial law? What about Appellants wait three years before they can be heard. international law? This is established fact. The pace of the court through Perhaps there is defect in the practicalness of otherits list is measured with accuracy, so that you may wise well-devised machinery. It must be difficult to learn at the beginning of a term with well nigh precise report generally upon such subjects. Any report to certainty on what day your case will be reached and be profitable must select some one topic from those called. Cases, by the time they reach that tribunal, are connected with the large subject-matter, and devote largely winnowed of unnecessary matter. Printed
attention exclusively to that. It has occurred to me briefs, rather say arguments, are in the hands of the to suggest an addition or a change in the present plan court before hearing. Counsel are economically re- of our meetings. It is the same successfully adopted stricted in time. The court gives four hours each in a leading religious denomination for a meeting week day but one to hearings. Their sessions begin in
termed its congress. Let the executive committee de. October and, with little intermission, conclude in termine upon some question or topic connected, we May. While they last their labor is burdensome. Per
will say, with law reform, and request four members haps they might increase the length of their daily ses
whom they shall select, to prepare and conduct a disBions and the length of their terpis. But this doubtless
cussion of it, arranging, if possible, that there shall be would interfere with time for incubation, and might difference in the views presented. Then let the subnot really benefit the suitors. Outside relief must
ject, after they are through, be open to debate by somehow be given. Could this association have united
speakers limited in time. on a scheme, it would have had great weight. But Besides this addition to the interest of our meetings unfortunately, minds have differed. That variance of
let the efficiency of our association be enhanced by deopinion was represented in Congress. Besides legisla- | termining upon some one or two amendments to the tion, even upon such a subject, is embarrassed by po- law, say upon the subject of the acknowledgment and litical strife. The advantage of one plan discussed in record of conveyances, and upon that of marriage and the association was that it created no new judges, and divorce, as to which all will admit the laws of the therefore neither party as such had any motive to op- States should be uniform. And then let a committee pose or delay it. The great practical objection to the
be appointed of one from each State, whose duty it other plan is that ove party or the other will always be shall be to bring the measure before its Legislatare, in the way of its passage, because it will not agree that
and if possible secure its adoption. The mere motive its opponent should supply all the new judges, and as of obtaining uniformity will be a strong argument for arranging for a division, that would be contrary to with every Legislature, and by prudent action on the that established maxim already mentioned superior in part of the committeemen it will not be difficult to sepolitical force to Holy Writ, “To the victors belong the cure the adoption of a wisely-drawn statute. spoils.” So the only effort on our part to promote the “Ars longu, vita brevis." Let us strive, brethren and administration of justice has failed.
friends, to make these delightful convocations someWhat other effort have we made? We have done
thing more than simple occasions of enjoyment. Let something tending to promote “uniformity of legisla- us strive to become a power, a power for good, a power tion throughout the Union." A very valuable paper
which shall be recognized, a power which through the on the recording laws of the United States, by an emi- welding together of strong minds and earnest hearts nent lawyer, judge and author, projected changes of the many thousands engaged in our noble profeswhich commended themselves to every mind, and sion, and through the attainmeut by means of uniwhich were duly discussed, published, and there was form laws governing social and business life, shall aid the end. I believe that one State has adopted an act the rail and the telegraph in that glorious work, the as to the acknowledgment of conveyances which was fruition fully of that which is our National motto; a approved by this association. An able report has been motto adopted, I must believe, not simply as descripmade on the subject of marriage and divorce, and the tive, nor as also prophetic, but besides, as necessity of uniform law on this snbject. If any thing briefly declaring the duty of every citizen in refereuce further has been done, or any change of any State law to the State and to the Nation, “ E Pluribus Unum." recently been made in this most important direction, I have not been so fortunate as to hear of it.
We have done something too "to advance the science of jurisprudence;" that is, papers have been read at
HABEAS CORFUS – DISCHARGE REFIEIT ABLE our annual meetings by distmguished and able lawyers
ONLY ON CERTIORARI. discussing subjects of great moment, and thus have tended, as does every thesis upon the law, to accomplish this high end. And yet comparatively has much
WISCONSIN SUPREME COURT, MAY 16, 1884. been done?
IN RE CROW.* I do not think our Constitution is at fault, nor its machinery. Annually, in conformity with the Consti- A court commissioner has jurisdiction to determine whether tution, committees are appointed for the year ensuing
a prisoner has suffered and served the full term of the on jurisprudence and law reform, on judicial adminis- imprisonment fixed by his sentence, and his adjudication tration and remedial procedure, on legal education is conclusive. and admissions to the bar, on commercial law, or in
The discharge of a prisoner on a writ of habeas corpus is ternational law.
final and conclusive, and the judgment cannot be reWhat has been done by these committees? How viewed, reversed, or annulled by an appellate court exmany reports have been made? That on legal educa- cept by eertiorari. tion and admissions to the bar has reported, and bene
When a prisoner has been discharged upon a writ of habens ficial effect has followed in at least one State. The agi- corpus, a Circuit Court has no jurisdiction to order his tation of that subject, and of the proper education for
rearrest and imprisonment for the same cause. the bar has, I believe, done much good. It has braoed After the prisoner's discharge, a sheriff has no authority to up the practice, if it bas not improved the rules, in one
rearrest and imprison him upon the same sentence upon State that I kuow of at least; I have hope that it has
which he was imprisoned the first time, and such rearrest elsewhere.
is unlawful. But what about jurisprudence and law reform?
*19 N. W. Rep. 713.
Where the petition alleges the expiration of the term of im- terms had expired, and as to the fourth that said term
prisonment, and continued confinement, it shows jurisdic- of imprisonment "was fully served and bad completely tion for the issuance of the writ. Rev. Stat. 1878, 8 2427, | expired.” The return to the first writ on this petisubd. 4.
tion was simply that he, the said Nelson Bower, "imcorpus.
prisons and restrains said John W. Crow, as aforesaid, under and by virtue of four certain certificates
of conviction and sentence, issued out of said court by D. S. Rose, for J. W. Crow, petitioner.
the clerk thereof, December 14, 1883, in four separate
actions of record in said court," etc. The certificates H. W. Chynoweth, Asst. Atty. Gen., for sheriff.
referred to are appended to the return the same as to ORTON, J. This is an original petition by J. W. the petition. On the hearing of this petition and reCrow for writ of habeus corpus, and for his discharge turn the honorable court commissioner discharged from imprisonment in the county jail of the county of the petitioner on the 11th day of March, 1884. La Fayette, and from the custody of the sheriff of The decision of this court upon the case made here, said county. The petition was filed and the writ is- upon the petition and the return of the sheriff to the sued on the 18th day of March, 1884. By the petition writ, must exclusively depend upon the question and the return of Nelson Bower, the sheriff of said whether the commissioner had jurisdiction of the first county, the following facts of record appear :
writ to hear and decide the case made by the petition On the 14th day of December, 1883, the petitioner and return. The argument of this case was especially was sentenced by the Circuit Court of La Fayette able on the part of the learned counsel of the peticounty, on four several convictions for misdemeanors, tioner, and on behalf of the State, by the learned asto pay fine and costs, and if not paid forthwith, to be sistant Attorney-General, Mr. Chynoweth, who not imprisoned in the county jail, on the first conviction, only made a very cogent argument, but presented and for 10 days; on the second, for 10 days; on the third,
commented upon a very large number of cases, which for 10 days; and on the fourth, for 40 days; to be so he claimed to be authority for his positions; (1) that imprisoned on the second after the termination of the
the commissioner had no jurisdiction whatever over first, on the third after the termination of the second, the case; (2) that if he had jurisdiction to issue the aud on the fourth after the termination of the third, writ, he had no lawful authority to discharge the pefor the aggregate term of 70 days. The defendant was titioner; and that in either case his judgment was abpresent in court when said sentences were pronounced, solutely void, and not conclusive, or a bar to this and on the same day the clerk of the court duly made second hearing upon habcas corpus of the same causes his certificates of the said convictions and sentences,
of imprisonment. He contends (1) that when it apand the same came to the hands of said sheriff. On
peared by the petition that the petitioner “had been the 10th day of March, 1882, the said sheriff arrested
committed or detained by virtue of the final judgthe petitioner, and held hiin in custody in the county ment or order of any competent tribunal of civil or jail by virtue of said certificates; whereupon the said criminal jurisdiction, or by virtue of any execution isCrow presented his petition, reciting the above facts, sued upon such order or judgment,'
it then apto the Hon. John W. Blackstone, court commissioner
peared that the petitioner was “not entitled to proseof the Circuit Court for said county, for a writ of cute such writ" according to section 3408, Rev. Stat.. habeas corpus, and for discharge thereon from said im
so providing. It might be a sufficient answer to this prisonment, alleging as the ground of such discharge, contention that the petition in that case did not claim in respect to the first three of said sentences, “that that the Circuit Court had no jurisdiction to render at the time of rendering said judgments by said judgment of sentence in those four cases of conviccourt, he was present in open court and ready to tion, or that the certificates of such convictions and enter upon the service of said terms of Ben- sentences, as commitments of the petitioner in executence, and did in law so enter upon the service of tion of the judgments, were not in every respect sufsaid terms of sentence, and that said terms of sentence ficient and valid, but that he claimed only that he had expired, and that he became entitled to his discharge endured and suffered the full punishments and imunder said judgments and certificates of conviction on
prisonments thereon, and that he was imprisoned long the expiration of the terms mentioned therein;" and after the full expiration of said terms of imprisonment in respeet to the fourth of said sentences, that (in to which he had been so sentenced. If in such a case addition to the above) said term of imprisonment was
however as claimed, or in any other, the facts in the fully served and has completely expired.” It is further
above prohibition of the statute appearing, the petistated in said petition “that the petitioner, since the tioner is not entitled to prosecute such writ, that of rendition and entry of each and all of said several
course is the end of the case, and a prisoner held in judgments, has been in the city of Darlington, in said
custody and imprisoned long after he has completely county, upon the streets and in the public places, and
fulfilled the whole sentence, and been imprisoned for bas almost daily during said term met and conversed the whole term, cannot procure his liberty by this with said sheriff.”
writ. If not by this writ, especially made a part of It may be noted here that there is nothing in this Magna Charta for the express purpose of delivering a petition inconsistent with the fact that the petitioner subject or citizen from unlawful imprisonment, and had been imprisoned in the county jail upon those which has been used always since effectually for such certificates of sentence for the full aggregate term of
purpose in all possible cases of unlawful imprisonBerenty days. (1) He was in the city of Darlington,
ment, where is the remedy? If a person sentenced to upon the streets and in the public places, since the
imprisonment may be saved from all of it except the rendition and entry of the several judgments. This
arrest, when the judgment, though just, may be with might have been long after he had been imprisoned in out jurisdiction, or the execution, though formal, may the jail for the full terms. (2) He almost daily, dur.
be without authority, why may not one be released iug said term, met and conversed with said sheriff.
and enlarged by this writ, after he has suffered the This he could have done within the county jail. But full measure of the imprisonment for which he was besides there being nothing in the petition to show sentenced, when he is still held without the pretense that the petitioner had not suffered his full term of of any lawful authority? The question answers itself. imprisonment in the county jail, as to each of the But such has always been proper ground for the writ, first three sentences it is stated that he entered upon and it is no answer by return of the officer that he the service of said terms of sentence, and that said holds the prisoner by virtue of a valid judgment and
an authorized execution of it. “A prisoner held by valid process may be discharged by habeas corpus by reason of some omission or event occurring since the issuing of it.” Wood Mand. Hab. Corp., etc., 174.
Many of the cases cited by the learned assistant at. torney-general, and many other cases, affirm this jurisdiction on habeas corpus.
In Trotter v. Mills, 6 Wend. 42, in a suit on a judgment, the defendant pleaded nul tiel record, and discharged from imprisonment. Held, that if discharged by reason of payment or satisfaction of the judgment, such discharge was final and conclusive.
In Hoose v. Sherrili, 16 Werd. 38, the defendant was served by summons when he was a non-resident, and not amenable to summous. The case went to judg. ment of five and imprisonment for 30 days, unless the fine was paid. Held, that a judge at chambers had jurisdiction in habeas corpus to issue the writ, but that the former judgment was final, because the court bad jurisdiction to issue a summons in a proper case, and whether it was a proper case could only be inquired on certiorari. So here the commissioner had jurisdiction to issue and hear the writ of habeus corpus for such cause, and such cause could only be reviewed on certiorari.
In Re.r v. Collyer, Sayers, 44 (26 Geo. II.), defendant was convicted of an assault, aud sentenced to imprisonment for one month, but it was added that he ask pardon of the injured party, and publish the sentence in the daily Advertiser, and be imprisoned until he had done so. The month's imprisonment had not expired. Held, that king's bench had jurisdiction to discharge him on habeas corpus, for excess of jurisdiction.
In Cleek v. Com., 21 Grat. 777, the conviction and sentence were in July, for 10 months. Defendant es. caped in September, was recaptured in January, and remained in prison until May, 10 months from date of sentence. On habeas corpus and refusal to discharge an appeal was taken to the Court of Appeals on error, and it was held that the three months he was out of prison on escape must be added to his sentence, because his escape was his own fault and crime. It is said in the opinion that the sheriff had the right to continue his imprisonment without any further order than the original sentence, because he was cognizant of the facts, and if the prisoner desired to have the question decided he could have had a writ of habeas corpus aud the facts inquired into, and that the court would have jurisdiction in such a case. Here the same or a similar question was involved on the first habeas corpus, viz., whether the term of imprisonment had expired.
In State v. Chancellor, 1 Strob. (S. C.) 378, the defendants were sentenced to receive twelve lashes, but were pardoned on condition that they leave the State and not return. They returned to the State. They were then brought before the court for resentence. The question was raised whether this was the proper practice in such cases. It was held that it was, because the defendants had the right to be heard on the question whether they should be punished after the day had passed by; and that they might show reasons for their return to the State, such as that they were kid napped and brought back by force,or other reason why the condition of their pardon was violated; or that they were not the same persons; and that such a case presented questions of both law and fact which ought to be inquired into by the court; and that such was the practice in England in such cases-citing cases. So here, whether the defendant had fully suffered his imprisonment, and was therefore entitled to go at large, was a question of fact to be inquired into by the
commissioner on habeas corpus. Can there be any doubt that the commissioner had jurisdiction in such a case to inquire further than the judgment of sentence, which was unquestionably valid, and rendered by a court having jurisdiction? The same practice was followed in State v. Fuller, 1 McCord (S! C.). 178.
In State v. Smith, 1 Bailey (S. C.), 283, the defendant was pardoned ou conditiou of his leaving the State. He left the State and then returned, and after staying some time, he returned to the foreigu State, and while there was arrested and brought back, and re-imprisoned on the old sentence. He was then brought before the chief justice at chambers on habeas corpus, and was remanded on resentence by the court, on rule to show cause. On the hearing before the chief justice on habeas corpus there was proof by affidavits of the prisoner’s voluntary return to the State. The opinion of Chief Justice Harper is appended to the case, affirming his jurisdiction in habeas corpus in such a case.
In People v. Potter, 1 Parker Crim. 47, the defendant was sentenced to imprisonment, and pardoned on condition of leaving the State, but returned and was rearrested, and remanded by the general sessions of New York city to serve out the remaining part of the term. The jurisdiction of the General Sessions was denied, and Judge Edmonds held by authority of Judge Bronson that the prisoner should have been brought before one of the judges of the Supreme Court, in Oyer and Terminer, on habeas corpus, to inquire into the facts before the defendant should be re. imprisoned.
Iu People v. Porter, 1 Duer, 709, it was oeld that a judge at chambers had jurisdiction on habeas corpus to discharge or remand au infant, although he had no authority to provide for the future custody of the infant, and the court of chancery only had such author. ity; but in Wilcox v. Wilcox, 14 N. Y. 575, it is held that the judges there could also provide for sucb future custody because they succeeded to this chancery jurisdiction.
In Haggarty v. People, 53 N. Y. 476, the seatence for robbery had not expired when the prisoner escaped. He was recaptured and brought before the court on information for resentence for balauce of the term. Held on error, that such a proceeding was unnecessary because if there was any good cause why the prisoner should not be so reimprisoned, it could be shown on habeas corpus, when the facts could be inquired into.
In People v. Cowles, 4 Keyes, 38, a judge at chambers discharged a prisoner imprisoned on a fine, on habeas corpus, and admitted him to the jail liberties; the reason for the discharge being that he was entitled to such liberties. Held, on error, that the judge had jurisdiction to discharge the prisoner for such reason, but had no jurisdiction to admit to the jail liberties, that power being only in the court; and the judgment was reversed.
In Ex parte Milburn, 9 Pet. 704, the defendant was under indictment and out on bail, and was rearrested on capias, and discharged from such restraint by habeas corpus. He was then arrested on a bench-warrant for trial. Ou a second habeas corpus it was held that he was imprisoned the second time on a very different process and cause, and therefore his first discharge was no bar to the second writ. The jurisdiction under the first writ was conceded, and the judgment on the same cause was held final until reversed. This case was cited for the State, as in point that the same case might be twice tried on two distinct and successive writs of habeas corpus. But it is really very much in point the other way.
In Rore v. Roue, 28 Mich. 353, it is held that a com- at chambers, and was recaptured by the army offioers. mon-law writ of certiorari may be granted by the Su- On second habeas corpus the judge was advised to dispreme Court to a court commissioner for the review charge the prisover by the whole court, ou the ground of his proceedings on habeas corpus to discharge from that his first discharge was final aud conclusive on unlawful restraint infant children, and that this is all persons and courts until reversed. This is a full the only remedy in such a case where the commis- and instructive case, and quotes the Booth case, in sioner had jurisdiction, and that in this case, he had this State. no jurisdiction to order or decree the custody of such In Clarke's case, 12 Cush. 320, a witness was held unchildren.
der an attachment for contempt for disobeying a In the celebrated McLeod case, 1 Hill, 377, and in subpæna. After trial and judgment in the case it was note, the following principles in respect to habeas cor- held that he was properly discharged on habeas pus are established: (1) When the petition shows a corpus, although the process was valid, on the ground proper case the writ must issue. (2) If the petition that ex post facto to the arrest there was no legal states the prisoner is not held in the case made pro- cause for his detention. hibitory by the statute, it must issue, although the rec- In Feeley's case, 12 Cush. 598, the sentence was a fine ords referred to in the petition may show an appar- and imprisonment, when the statute only authorized a ent lawful authority. (3) An apparent authority by fine or imprisonment. The prisoner was properly disjudgment and process may not be a real or legal au- charged, after the fine was paid, on habeas corpus. thority, and therefore on the return of the writ this The question may be whether the prisoner was arquestion must be examined and decided, and even if rested on legal process, or whether he is now lawfully such decision is wrong, it is nevertheless final until re- held thereon, by reason of something ex post facto the versed on certiorari or error. (4) When the petition process. Hurd Hab. Corp. 326. Habeas corpus claims and asserts that proceedings in a Federal court against habeas corpus is never allowed except in conwhich resulted in the imprisoument, though appar- nection with the writ of certiorari. Ex parte Yerger, 8 ently authorized and valid, are not so in truth and Wall. 85; Ex parte Collier, 6 Ohio St. 55. fact, the writ must issue, and a discharge by a State In Mead v. Deputy Marshal, 2 Wheel. Crim. Cas. 569, court in such a case is final. Whart. Dig., tit. “ Habeas it is held that a person imprisoned for the non-payCorpus.” (5) The court or judge, baving thus ac- ment of a fine, by a court-martial was properly disquired jurisdiction, has the power to decide rightly or charged on habeas corpus on the ground that he had wrongly, and discharge or remand the prisoner, and no notice of the proceedings. The judgment of disall persons must yield obedience to the judgment, and charge, not actually void for want of jurisdiction to isit is final until reversed, even if there has been gross sue the writ, is a final judgment, and cannot be imerror. 1 Chit. Crim. Law, 128; Bacon Abr., tit. peached collaterally. It can only be reviewed on * Habeas Corpus." (7) The power within the juris- error or certiorari. Fæ parte McGehan, 22 Ohio (O. 8.), diction is judicial, and such jurisdiction and power 442; Hurd Hab. Corp. 563; E. parte Milburn, supra; 9 are precisely the same in judges at chambers, or court Pet. 704; Com. v. McBride, 2 Brewst. 545; Mathis v. commissioners, as in the courts. (8) Jurisdiction at- Colbert, 24 Ga. 384. taches when the petition verified states that the pris. If it is the judgment of a court, a writ of error lies oner is held without lawful authority. Betts v. Bag- without any statutory provision; and if by a judge or ley, 12 Pick. 572. (9) If the officer returns a good writ court commissioner, a certiorari lies at common law. and legal authority, even that does not end the case, Com v. Biddle, 6 Penn. Law J. 287. The attorney-genor divest of jurisdiction, for there may be no good eral may appeal or take the writ in case of discharge. writ or legal authority in fact; either the writ or the Ex parte Lafonta, 2 Rob. (La.) 495; Waddington v. persou named in it may be wrong, and not the writ or Sloan, 15 B. Mon.147; State v. Potter, Dud. Law (S.C.), person in question. (10) Jurisdiction may be given 296; Hurd Hab. Corp. 575. A judge at chambers has by a petition stating some proper ground for discharge, plenary power and jurisdiction in writs of habeas corEL post facto to the judgment and writ, such as dis- pus. In re Blair, 4 Wis. 531. A county judge, as court charge, or satisfaction of the judgment or pardon, or commissioner, has jurisdiction to inquire into the lethe full penalty suffered. (11) After a' discharge of a gality of the commitment, but when jurisdiction is prisoner by the judge, commissioner, or court having shown in the court to issue it, he cannot discharge for jurisdiction, be cannot be rearrested, under the pen- mere errors or irregularities, but must remand the alty of the statuto, until the judgment of the judge or prisoner. This case was heard on certiorari. To ascommissioner had been reversed by certiorari, or of certain jurisdiction the petition and papers annexed the court by writ of error. Milburn case, supra. And thereto can alone be consulted. Petition of Semler, 41 such judgment is a bar to another writ of habeas cor. Wis. 517. pus to remand the prisoner after his rearrest. Holmes When the petition presents a proper case, then the V. Jennison, 11 Pet. 540. On the writ, as enlarged by writ must issue under the pevalty of the statute, and statute, the officer or court must inquire (1 as to the the writ will not be denied without the most weighty jurisdiction in the case in which the prisoner is con
In re Pierce, 44 Wis. 411. The statute profined; (2) the excess of such jurisdiction; (3) whether hibiting a commitment after a discharge on habeas corthe judginent has not been satisfied. People v. Lis. pus applies strictly to criminal proceedings. Beyer v. comb, 60 N. Y. 566. A court commissioner, on habeas Vanderkuhlen, 48 Wis. 320; S. C., 4 N. W. Rep. 354. corpus, bas jurisdiction to inquire whether the court, by Certiorari will lie to a judge at chambers on habeas whose process the petitioner is imprisoned, had juris- corpus proceedings to review his order remanding the diction in the case in question, not in any such case. prisoner, and the order will be reversed if this court The jurisdiction of a court cannot be protected against
fiuds that the court that issued the commitment had inquiry by merely asserting it. People v. Cussels, 5 no jurisdiction. In re Eldred, 46 Wis. 530; S. C., 1 N. Hill, 164; Ex parte Lange, 18 Wall. 163. There is full W. Rep. 175. Courts, judges at chambers, and court jurisdiction in a judge or court to discharge by this commissioners have equal jurisdiction of habeas corpus writ, when the court which rendered judgment ex
and must grant the writ unless the petition shows that ceeded his jurisdiction (Crepps v. Durden, Cowp. 640), the petitioner is clearly not entitled to it. Bagnal v. or when the term of imprisonment has expired, as
Ableman, 4 Wis. 163. Rex v. Collyer, supra.
These authorities clearly establish (1) the jurisdioIn McConologue's case, 107 Mass. 171, a minor en- tion of the commissioner to issue the writ and to hear listed in the army was discharged by a single judge it; (2) the finality and conclusiveness of his judgment
of discharge; (3) the entire want of jurisdiction in the sheriff for an escape, on appeal it was held that this court to review, reverse, or annul that judgment the last discharge by a court commissioner was void by another writ of habeas corpus in respect to the because the prisoner was held on civil process. Many same cause of imprisonment or grounds of discharge, thiugs are said in the opinion in this case, in which or in any other way than by certiorari ; (4) tbe writ of there was another dissent by Judge Spencer, not apjurisdiction in the Circuit Court to order the peti- plicable to the case, and obiter in respect to the juristioner's rearrest and imprisonment for the same diction of court commissioners, and the conclusivecause; (5) the want of authority in the sheriff to make ness of their judgments of discharge on habeas corsuch rearrest, or to recommit the petitioner to the pus. county jail on the same sentence; and (6) the jurisdic- In Com v. Deacon, 8 Serg. & R. 72, the defendants tion of the commissioner to determine the question were tried on an indictment of sixteen counts, and whether the petitioner had already suffered and convicted by the jury on nine of them, and the jury served the full terms of the imprisonment fixed by the said nothing as to the other seven. The court issued sentence, and the conclusiveness of his adjudication a commitment, without rendering judgment on the of such fact.
verdict, to hold the defendants for trial on these reThe assistant attorney-general cited some cases other maining counts. The court was the mayor's court of than the above, which he claimed were adverse to these Philadelphia, of special and limited jurisdiction. On positions.
habeas corpus the prisoner was remanded, and on error In Re Buddington, 29 Mich. 472, it was held that a to the Supreme Court this judgment was affirmed; the court commissioner had no power to review any pro- court holding that the mayor's court had jurisdictiou ceeding of a court, and that his power under the writ by the indictment, and that although the defendants was less than that of a court.
had been acquitted by the verdict, the imprisonment In re Frank, 39 Mich. 203, it was held that a court was not without jurisdiction, and erroneous only, and commissioner had no power to review on this writ the could not be reviewed on habeas corpus; and also that proceedings of a court, and had no judicial power, and the court had jurisdiction of the habeas corpus by the his judgment was not conclusive. Our Constitution, petition, and the judgment thereon was final, because in relation to the judicial power of a court commis- if the prisoner ought to have been discharged instead sioner ($ 23, art. 7), must be different from the Consti- of remanded, it was error only, which might be retution of that State. We have seen that in many of the viewed. Many other cases might be cited to the same States, as well as in our own, the judicial power in effect, that the judgment on habeas corpus on the habeas corpus is plenary, and equal to that of the same cause of commitment, where jurisdiction is had courts.
by the petition, is final and conclusive. Iu the above Spalding v. State of New York, 4 How. (U. S.) 21, was case, Duncan, J., said in his opinion: “You need a case of imprisonment for contempt.
not use any argument to prove that the plaintiffs canEx parte Robinson, 6 McLean, 355, was a case of a fugi- not be tried on this indictment;" and then insisted tive from labor, adjudicated to be a slave, and re- that this was one of the facts or questions of law to be manded to his master by a commissioner of the decided in that case, and there was jurisdiction for United States, under the act of Congress, and at that purpose. So in this case, the question of fact, or tempted to be discharged by a State judge on habeas perhaps the mixed question of law and fact, whether corpus, and has no application to this case.
the petitioner had served out his sentence, and that In Wright v. State, 5 Ind. 290, the jurisdiction of the it had expired by limitation of time, was within the judge of the Common Pleas to remand the prisoner is jurisdiction of the commissioner to try and deteraffirmed, and his jurisdiction to discharge him is not mine, and if he decided wrongly it could be corrected denied.
only on certiorari. In Yates' case, 4 Johns. 317, a master in chancery It is somewhat strange that the learned judge who was imprisoned for malpractice by the court of chan- ordered the rearrest and imprisonment of the peticery, and discharged by a judge of the Supreme Court tioner should have overlooked the penal prohibition at chambers on habeas corpus, and he was rearrested of the statute against a rearrest after discharge on and imprisoned for the same cause. Judges Yates and
This prohibition is older than the Spencer held that the judge had jurisdiction to dis- statutes of our rarious States, and was early adopted charge, and that his discharge was final; but Chancel- as a necessary incident of this great writ of liberty, to lor Kent and Judges Van Ness and Thompson held protect its full, complete, and beneficent results, and that the judge had no plenary jurisdiction at cham- secure its full operation and effect in favor of liberty bers, and could not enforce his orders or judgments; by the statute of Charles II. We have seen that the and that they were not therefore final and conclusive. petition and return in the former case before the comNot so however in this State, for he may imprison for missioner show jurisdiction by alleging that the term contempt, etc., and so may a court commissioner. of imprisonment had expired, and that the petitioner
In Yates v. Lansing, 5 Johns. 282, it was held only was then imprisoned without any legal authority. that courts could not be prosecuted for the penalty of The above authorities show that such is a good and the statute for rearrest of prisover after his discharge sufficient cause for the writ. But our statute, in efon habeas corpus, and that the statute only referred to fect, provides that it is. officers. In this case it is said that there had been a Section 24:27, Rev. Stat., sub. 4, provides, as one of long contest since the Chamber case, in Cro. Car. 168 the grounds upon which the court or officer must re(vas.I.), between courts of chancery and of law,over the mand the prisoner, " that the time during which such right of interference by the law judges with the pris- party may be legally detained has not expired." This oners of the chancery courts. This controversy, no is equivalent to providing that he shall not be re. doubt, affected the decision of such cases in the early manded, but shall be discharged if such time has ex. courts of New York, while the old court of chancery pired. It is proper to say here that the learned assisexisted there.
tant attorney-general insists that the petition in the In Cable v. Cooper, 15 Johns. 152, the imprisonment first case showed that the petitioner had never been was on civil process, and the discharge under the stat- imprisoned in the county jail on such sentences;
but ute for the relief of poor debtors. He was arrested as we have seen, the petition in that case did not 80 again in a suit on the former judgment, and failed to show, but for aught that appeared in that case, he was plead his discharge. Then on habeas corpus, and a unfawfully imprisoned after the full term of the sensubsequent discharge thereon, and in a suit against tence had been suffered and had expired. The peti