though many attempts were made to awe and intimidate them by the Mayor of London, who presided at the trial, acquitted the accused. For this independence, they were fined forty marks a-piece, and were committed to prison for nonpayment of it; but applying for a habeas corpus, and sufficient matter not appearing on the return, the commitment was decided to be illegal, and Bushel was discharged.

The rule in the United States is conformable to the spirit of this decision. For, if the warrant of commitment appears to be illegal, for want of stating some good cause certain supported by oath, the court of the United States will discharge the prisoner. 3 Cranch, 453.

And therefore, when General Wilkinson, in 1807, with an armed force arrested Mr. Alexander, a gentleman of the bar, at New Orleans, and two other gentlemen, Messrs. Bollman and Swartwout, and sent them to Washington, Mr. Alexander was immediately discharged by a justice of the circuit court, and the two others by the supreme court, on a habeas corpus, their arrest being illegal. See 4 Cranch, 75. But the court will look no further, than to see that a sufficient probable cause is contained in the warrant of commitment. 4 Dal. 412.

In the case of Samuel Stacey, a habeas corpus was issued by a commissioner of the state of New York, directed to Com. Chancey and General Lewis, commanding them to bring before the commissioner the body of Stacey, with the cause of detention. General Lewis returned, that the body was not in his custody, &c. The return was considered by the supreme court of that state, to whom the subject was submitted, to be insufficient upon the face of it, because it did not say, that Stacey was not in his possession or power. It was therefore considered evasive and a contempt of process, and an attachment was immediately issued, without any previous rule to show cause. In this case, Chief Justice Kent in the course of his opinion made the following remarks. This is a case which concerns the liberty of the citizen. Stacey is now suffering the rigor of confinement in close custody, at this unhealthy season of the year (August 1813,) at a military camp, and under military power. He is a natural born citizen, residing in the state. He has a numerous family dependent upon

him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only an aggravation of the oppression of confinement. (There was an affidavit that, General Lewis had expressed an opinion, that a court-martial was the proper tribunal to try Stacey.) It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of these means is this writ of habeas corpus, which has justly been esteemed the glory of the English law; and the parliament of England, as well as their courts of justice, have, on several occasions, and for the period, at least, of the two last centuries, shown the utmost solicitude, not only that the writ when called for should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate in promptly enforcing a due return to the writ, when we recollect, that in this country the law knows no superior, and that in England, their courts have taught us, by a series of instructive examples, to exact the strictest obedience, to whatever extent the persons to whom the writ is directed may be clothed with power, or exalted in rank.

'If ever a case called for the most prompt interposition of the court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding him in the closest confinement, and contemning the civil authority of the state. The parties are also at so great a distance, that no rule to show cause could be made returnable at this term, &c.' The court ordered that an attachment be issued, against General Lewis, unless he obeyed the habeas corpus, or discharged Stacey. See 10 Johns. R. 333.

It has been laid down generally, that no one can in any

case, controvert the return to a habeas corpus, or suggest any thing contrary to it. It is held, that if a false return is made, suggesting a sufficient cause of detention, the court will not inquire into it, but will remand the prisoner, though he be prepared to show that it is false. It is held further, that he can have no other redress, but by an action on the case for a false return, or an action of trespass for the false imprisonment. See 11 Co. 99 b. Bagg's case. Godb. 198.

There are some opinions however to the contrary; See Bac. Abr. Habeas Corpus, (C.); and certainly, the writ of habeas corpus must be deprived of much of its utility and importance, if the person to whom it is directed, can avoid delivering up the prisoner, by a false return of a good cause. Το render this process dependent upon the aid of the auxiliary actions of case or trespass, is to render it comparatively ineffec

tual.

During the last war, a citizen of Maryland was seized by a military recruiting party, under pretence of enlistment. He applied for a habeas corpus, and the officer returned that the enlistment had been regularly and fairly made. The citizen had abundance of testimony to prove, that there had been an attempt to impose the bounty on him, which he immediately spurned at, and that he had done no act whatever, by which he could be considered as having enlisted. But the judge decided that he could receive no evidence to contradict the return, &c. A more flagrant case could not well be imagined. The consequence was, that the legislature of that state immediately passed an act declaring the law in relation to this subject, authorizing the complainant to controvert the truth of the See 5 Hall's Law Jour. 486.

return.

Though the law was very properly declared by the legislature of Maryland, for the satisfaction of doubts, it may well be questioned whether the decision of the judge, in the case referred to, was correct. The reason why returns in general cannot be contradicted is, because they are usually made by proper officers, appointed by the public. But the return of a private citizen to a habeas corpus, directed to him, is entitled to no such respect, and a recruiting officer in this particular is entitled to no higher consideration than any other citizen. None

but officers entrusted by law with the custody of persons, such as gaolers, sheriffs, &c. &c. can come within the reason of the rule, which does not permit returns to be contradicted. Suppose a man should have the person of a female in his custody, and a habeas corpus being directed to him, returns that she is his wife, or his daughter, or his ward, will the court suffer her to remain in his custody when she may be able to prove the return false. Suppose a man-stealer to have the person of another in his custody, and on a habeas corpus, returns that the prisoner is his slave, will the court permit him to carry off his victim, without hearing the evidence which he may offer to prove the return to be false? For, color alone is no safe criterion; since many blacks are free; and there are some slaves, especially children, whose complexions cannot be distinguished from that of the whites.

To make the writ of habeas corpus an effectual remedy for illegal imprisonment, the prisoner ought to be permitted to controvert the truth of the return, in all cases where the person is not a civil officer, entrusted officially with the custody of prisoners. This, on principle, is believed to be the true law on the subject. In all other cases, no other excuse for not bringing in the body ought ever to be received, but, either, that the prisoner could not be removed on account of sickness, or, that he was not then and had not been in the custody of the respondent, or, that he had made his escape, &c.

If a person should be committed for a contempt, by a court of competent jurisdiction, the liberty of the citizen would seem to require, that the matter or act constituting the contempt, should be returned, in order that there might appear to be sufficient cause for the imprisonment, of which the court having authority to issue the habeas corpus, might judge. But, as every magistrate may by law commit for a contempt founded on sufficient cause, the matter of the contempt ought to appear both in the commitment and on the return to the habeas corpus; otherwise, under a loose charge of contempt without further specification, any citizen may be imprisoned without remedy. And therefore, if either house of congress, or of either of the state legislatures, should commit for a conteinpt generally, without specifying the particulars of the contempt,

a regard for the liberty of the citizens, requires, that the supreme court of the United States, or the supreme court of the particular state, according to the circumstances of the case, should discharge the prisoner on account of the looseness and generality of the return. But, in case of such commitment, if, the particulars of the contempt were specified, and the court should be of opinion that the cause of detention was not: sufficient, being grounded on a mere usurpation of power, in violation of the constitution of the United States, or, of that of the particular state, according to circumstances, they ought, without hesitation, to discharge the prisoner. This doctrine seems to be supported by the remarks of Ld. Ellenborough, in the case of Burdett v. Abbott, so far as to discharge a prisoner where an insufficient cause of commitment is assigned in the warrant, but is at variance with it in other respects. But, as imprisonment is only justifiable on a warrant expressing a certain sufficient cause, and as it does not consist with the nature of our constitutions and laws, that any body of men, though in authority, should have the power to imprison the citizens arbitrarily, by the simple expedient of assigning any cause in such general terms, that no other tribunal can determine whether it is or is not sufficient, it is presumed that the qualification of Ld. Ellenborough's doctrine, would not be sustained here. In delivering his opinion in the case referred to, his lordship remarks: 'If a commitment appeared to be for a contempt of the house of commons generally, I would neither in the case of that court, nor of any other of the superior courts, inquire further; but, if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment, palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to happen) we must look upon it and act upon it as justice may require, from whatever court it may profess to have proceeded.' See 14 East, 1. But the subject is submitted to the intelligent reader.