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We have elsewhere referred to certain rules regarding the validity of judicial proceedings.1 In the great anxiety on the part of our legislators to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dig

nity. Any such employment of the writ is an abuse.2 [* 348] Where a *party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: 1. Whether the court or officer, issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of

Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the application. Cobbett's Case, 15 Q. B. 181, note; Cobbett v. Hudson, 10 Eng. L. & Eq. 318; s. c. 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when in prison.

1 See post, p. *397 et seq.

2 People v. Liscomb, 60 N. Y. 559, 574; Petition of Crandall, 34 Wis. 177; Ex parte Van Hagan, 25 Ohio, N. s. 426; Ex parte Shaw, 7 Ohio, N. s. 81; Ex parte Parks, 93 U. S. Rep. 18, 23; Perry v. State, 41 Tex. 488; Matter of Underwood, 30 Mich. 502; Matter of Eaton, 27 Mich. 1; Re Stupp, 12 Blatch. 501; Ex parte Winslow, 9 Nev. 71; Ex parte Hartman, 44 Cal. 32; In re Falvey, 7 Wis. 630. Petition of Semler, 41 Wis. 517; In re Stokes, 5 Sup. Ct. (N. Y.) 71; Ex parte Fernandez, 10 C. B. N. s. 2, 37. This is so, even though there be no appellate tribunal in which the judgment may be reviewed in the ordinary way.

Ex parte Plante, 6 Lower Can. Rep. 106. It is worthy of seri

ous consideration whether, in those States where the whole judicial power is by the constitution vested in certain specified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the District Courts, was sustained in Ex parte Bollman and Swartwout, 4 Cranch, 75, and Matter of Metzger, 5 How. 190, on the ground that it was appellate. See also Er parte Kearney, 7 Wheat. 38; Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 Pet. 704; Matter of Kaine, 14 How. 103; Matter of Eaton, 27 Mich. 1; Matter of Buddington, 29 Mich. 472.

8 The validity of the appointment or election of an officer de facto cannot be inquired into on habeas corpus.

judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the process, or on regular appellate proceedings. 2. If the process is not void for want of jurisdiction, the further inquiry will be made, whether, by law, the case is bailable, and if so, bail will be taken if the party offers it; otherwise he will be remanded to the proper custody.2

This writ is also sometimes employed to enable a party to enforce a right of control which by law he may have, springing from some one of the domestic relations; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not generally go farther in these cases than to determine what is for the best interest of the child; and they do not feel compelled to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case; and

Ex parte Strahl, 16 Iowa, 369; Russell v. Whiting, 1 Wins. (N. C.) 463. Otherwise if a mere usurper issues process for the imprisonment of a citizen. Ex parte Strahl, supra.

1 People v. Cassels, 5 Hill, 164; Bushnell's Case, 9 Ohio, N. s. 183; Ex parte Watkins, 7 Pet. 568; Matter of Metzger, 5 How. 191; Petition of Smith, 2 Nev. 338; Ex parte Gibson, 31 Cal. 619; Hammond v. People, 32 Ill. 472, per Breese, J. In State v. Shattuck, 45 N. H. 211, Bellows, J., states the rule very correctly, as follows: If the court had jurisdiction of the matter embraced in these causes, this court will not, on habeas corpus, revise the judgment. State v. Towle, 42 N. H. 541; Ross's Case, 2 Pick. 166, and Riley's Case, 2 Pick. 171; Adams v. Vose, 1 Gray, 51. If in such case the proceedings are irregular or erroneous, the judgment is voidable and not void, and stands good until revised or annulled in a proper proceeding instituted for that purpose; but when it appears that the magistrate had no

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jurisdiction, the proceedings are void, and the respondent may be discharged on habeas corpus. State v. Towle, before cited; Kellogg, Ex parte, 6 Vt. 509. See also State v. Richmond, 6 N. H. 232; Burnham v. Stevens, 33 N. H. 247; Hurst v. Smith, 1 Gray, 49."

2 It is not a matter of course that the party is to be discharged even where the authority under which he is held is adjudged illegal. For it may appear that he should be lawfully confined in different custody; in which case, the proper order may be made for the transfer. Matter of Mason, 8 Mich. 70; Matter of Ring, 28 Cal. 247; Ex parte Gibson, 31 Cal. 619. And where he is detained for trial on an imperfect charge of crime, the court, if possessing power to commit de novo, instead of discharging him, should proceed to inquire whether there is probable cause for holding him for trial, and if so, should order accordingly. Hurd on Habeas Corpus, 416.

3 Commonwealth v. Aves, 18 Pick.

it is especially proper in many cases where the parents are living in separation and both desire his custody. The right of the father, in these cases, is generally recognized as best; but this must depend very much upon circumstances, and the tender age of the child may often be a controlling consideration against his claim. The courts have large discretionary power in these cases, and the tendency of modern decisions has been to extend, rather than restrict it.1

There is no common-law right to a trial by jury of the issues of fact joined on habeas corpus; but the issues both of fact and of law are tried by the court or judge before whom the proceeding is had; though without doubt a jury trial might be provided for by statute, and perhaps even ordered by the court in some cases.3

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*Right of Discussion and Petition.

The right of the people peaceably to assemble, and to petition the government for a redress of grievances, is one which "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." But it has not been thought unimportant to protect this right by statutory enactments in England; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made

193; Shaw v. Nachwes, 43 Iowa, 653; Garner v. Gordan, 41 Ind. 92; People v. Weissenbach, 60 N. Y. 385.

1 Barry's Case may almost be said to exhaust all the law on this subject. We refer to the various judicial decisions made in it, so far as they are reported in the regular reports. 8 Paige, 47; 25 Wend. 64; People v. Mercein, 3 Hill, 399; 2 How. 65; Barry v. Mercein, 5 How. 105. See also the recent case of Adams v. Adams, 1 Duv. 167. For the former rule, see The King v. De Manneville, 5 East, 221; Ex parte Skinner, 9 J. B.

Moore, 278. Where the court is satisfied that the interest of the child would be subserved by refusing the custody to either of the parents, it may be confided to a third party. Chetwynd v. Chetwynd, L. R. 1 P. & D. 39; In re Goodenough, 19 Wis. 274.

2 See Hurd on Habeas Corpus, 297-302, and cases cited; Baker v. Gordon, 23 Ind. 209.

3 See Matter of Hakewell, 22 Eng. L. & Eq. 395; s. c. 12 C. B. 223.

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Story on the Constitution, § 1894.

the right of petition the point of attack, and selected for its contemplated victims the chief officers in the Episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English constitutional history; and the right which was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation, a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity."2 Happily the occasions for discussing and defending it have not been numerous in this country, and have been confined to an exciting subject now disposed of.3

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* Right to bear Arms.

[* 350]

Among the other safeguards to liberty should be mentioned. the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly manifested in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very

1 See this case in 12 Howell's 57-60, 182-188, 209, 436-444; 12 State Trials, 183; 3 Mod. 212. Also Benton's Abridgment of Debates, in Broom, Const. Law, 408. See also the valuable note appended by Mr. Broom, p. 493, in which the historical events bearing on the right of petition are noted. Also, May, Const. Hist. c. 7; 1 Bl. Com. 143.

2 Lieber, Civil Liberty and SelfGovernment, c. 12.

For the discussions on the right of petition in Congress, particularly with reference to slavery, see 1 Benton's Abridgment of Debates, 397; 2 Benton's Abridgment of Debates,

660-679, 705-743; 13 Benton's
Abridgment of Debates, 5-28, 266-
290, 557-562. Also Benton's Thirty
Years' View, Vol. I. c. 135, Vol. II.
c. 32, 33, 36, 37. Also the current
political histories and biographies.
The right to petition Congress is one
of the attributes of national citizen-
ship, and as such is under the protec-
tion of the national authority. United
States v. Cruikshank, 92 U. S. Rep.
542, 552, per Waite, Ch. J.
4 1 Bl. Com. 143.

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army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is "a wellregulated militia;" but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed; but how far it may be in the power of the legislature to regulate the right we shall not undertake to say. Happily there neither has been, nor, we may hope, is likely to be, much occasion for an examination of that question by the courts.1

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1 In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and of the State. But see Nunn v. State, 1 Kelly, 243; State v. Mitchell, 3 Blackf. 229; Aynette v. State, 2 Humph. 154; State v. Buzzard, 4 Ark. 18; Carroll v. State, 28 Ark. 99; s. c. 18 Am. Rep. 538; State v. Jumel, 13 La. Ann. 399; s. c. 1 Green, Cr. Rep. 481; Owen v. State, 31 Ala. 387; Cockrum v. State, 24 Tex. 394; Andrews v. State, 3 Heisk. 165; s. c. 8 Am. Rep. 8; State v. Reid, 1 Ala. 612. A statute prohibiting the open wearing of arms upon the person was held unconstitu

tional in Stockdale v. State, 32 Geo. 225. And one forbidding carrying, either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was sustained, except as to the last mentioned weapon; and as to that it was held that, if the weapon was suitable for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition" to a white person was unconstitutional. And see, in general, Bishop on Stat. Crimes, c. 36, and cases cited.

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