SECTION VIII.

VERIFICATION OF THE RETURN.

At common law no affidavit was required to the return. Leonard Watson's case, 36 Eng. C. L., 285. But in many of the states it is required that the return shall be under oath.

In Ohio, Swn. St., 454, sec. 7, it is required that the return or statement shall be signed by the person making it; and shall be sworn to by him, unless he is a sworn public officer, and makes the return in his official capacity. So in Indiana, Rev. St., 1843, 929, sec. 5; and in New York, 2 Rev. St., 1852, 800, sec. 47.

SECTION IX.

EFFECT OF THE RETURN AT COMMON LAW.

In 2 Hawk. P. C., ch. 15, sec. 78, it is said:

"It seems to be agreed that no one can in any case controvert the truth of the return to a habeas corpus, or plead or suggest any matter repugnant to it."

In the examination of the judges before the House of Lords, in 1758, the following question was addressed to them:

"Whether in all cases whatsoever, the judges are so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot discharge the person brought up before them, although it should appear most manifestly to the judges, by the clearest and most undoubted proof, that

such return is false in fact, and that the person so brought up is restrained of his liberty by the most unwarrantable means, and in direct violation of law and justice?"

The answers of the several judges, though disagreeing in some particulars, are nevertheless curious and instructive. They show at least that the proposition above quoted from Hawkins' P. C., was not, in its absolute form, the law.

Lord Ch. J. Willes, Justices Noel, Bathurst, Clive and Baron Legge, answered categorically in the negative.

Mr. Justice Foster, who was absent, subsequently concurred with them. He also addressed a letter to Ch. Baron Parker expressing his views at length, which is cited post.

The other judges gave qualified answers.

Mr. BARON SMYTHE: "The judges were so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot enter into proof by affidavits to controvert them; the facts set forth in the return can be controverted or contradicted only by the verdict of a jury."

Mr. BARON ADAMS: "If an action should be brought for a false return made to an habeas corpus, and therein the return should be falsified by judgment upon verdict, demurrer or otherwise, the judges might thereupon issue an alias habeas corpus, and upon that discharge the party; but that, in all cases whatsoever, when the matter comes before the court, singly upon the return made to the habeas corpus, if that return contains a sufficient and justifiable cause of restraint, the judges must determine upon the cause as it there appears, and cannot hear any proof in contradiction to it, but are so bound by the facts set forth therein, that though they be false in fact, and the party in truth

restrained of his liberty by the most unwarrantable means, and in direct violation of law and justice, they cannot discharge him, but he is driven to his action."

Mr. JUSTICE DENNISON. "In all cases whatsoever where the return consists of facts justifying the taking and detaining by law, the judges are so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot discharge the person brought up before them upon affidavits to be read in that proceeding contradicting the facts contained in the return; but if it should appear most manifestly to the court, by the clearest and most undoubted proof, either in action or some collateral proceeding, that such return is false in fact, and that the person so brought up is restrained of his liberty by unwarrantable means, and in direct violation of law and justice, the prisoner may be discharged."

Mr. JUSTICE WILMOT. "I am of opinion that 'in no case whatsoever, the judges are so bound by the facts set forth in the return to the writ of habeas corpus, that they cannot discharge the person brought up before them, if it shall most manifestly appear to the judges, by the clearest and most undoubted proof that such return is false in fact; and that the person so brought up is restrained of his liberty by the most unwarrantable means and in direct violation of law and justice;' but by the clearest and most undoubted proof, I mean the verdict of a jury, or judgment on demurrer or otherwise, in an action for a false return; and in case the facts averred in a return to a writ of habeas corpus are sufficient in point of law to justify restraint, I am of opinion that the court or judge before whom such writ is returnable cannot try the facts averred in such return by affidavits in any proceeding grafted upon the return to such writ of habeas corpus."

It deserves to be noticed in this connection that while this learned judge argued strenuously against

receiving affidavits to controvert the facts stated in the return, he was willing, in some cases, to allow them that effect indirectly. As where the affidavits tended to show the commission of a crime in the matter of the imprisonment or that the return was false, he would suspend further action under the writ of habeas corpus to enable the party brought up to appeal to the court in the exercise of its summary criminal jurisdiction to grant an information against the person making the return, and then, by imposing severe terms in the matter of bail, compel him to grant immediate relief to the person imprisoned! Wilmot's Opinions, 106.

Mr. Justice Foster, in his letter found in 20 How. St. Tr., 1375, says:

"As I always considered the case of a barely wrongful detention as not within the habeas corpus act, but merely at common law, I thought a legal, sound discretion ought to be used, and generally expected an affidavit on behalf of the party applying for the writ setting forth some probable ground for relief on the merits of his case. This method I constantly observed in the case of men pressed into the service, and that the public service might not suffer by an abuse of the writ, I ordered notice to be given to the proper officers of the crown of the time at which the party was to be brought before me, with copies of the affidavits. From the notes of cases I have, I find the court hath not granted the writ as of course and within the habeas corpus act, but hath required affidavits on behalf of the party applying for it, setting forth the merits of his case; and, on the other hand, though proper returns in point of form may been made, the court hath not given entire credit to them, and put the party complaining to his action for a false return, but

have

hath constantly entered into the merits of the case upon affidavits, and either discharged or remanded the party as the case hath appeared."

In his letter to Lord Chief Baron Parker, 20 How. St. Tr., 1378, he says:

"I agree with your lordship in the truth of the general doctrine, that a return to a writ of habeas corpus is conclusive in point of fact. It cannot be traversed; the court is bound by it, and the injured party is driven to his action. This I admit is the general rule, but I think that it is not universally true. Cases may be put which are exceptions to it; and the exceptions do not, as your lordship well knows, destroy but rather establish a general rule. The case of persons pressed into the service is, I conceive, one of them, for this plain reason, that if the party cannot controvert the truth of the facts set forth in the return, he is absolutely without remedy. An inadequate, ineffectual remedy is no remedy; it is a rope thrown out to a drowning man which cannot reach him, or will not bear his weight. It is the offering of baubles to the children of one's family, when they are crying for bread. In common cases, in every case where the general rule is laid down, the injured party must wait with patience till he can falsify the return in a proper action. This, it must be confessed, is a great misfortune, but till the day of his deliverance comes, he continues at home in the custody of the law and under its protection. This your lordship knows is not the case of a man pressed into the service by land or sea, supposing him to be no object of the law. The principle is that though in common cases the return is conclusive in point of fact, yet there are special cases as they come not within the general reason of the law are not within the general rule. The parties are without remedy if they are not to controvert the truth of the return in a summary way, and therefore they shall do it."