but is confined to the question of jurisdiction, and proves, that for the want of that, whether shown upon the face of the return or aliunde, the prisoner might be discharged.

It is obvious, moreover, as well from the nature of the question and answers of the judges in 1758, as from the occasion which elicited their examination, that their attention was particularly directed to cases of habeas corpus not within the habeas corpus act, to cases where the petitioner was expected to show, before the writ would be granted, some probable ground for relief upon the merits of his case; and where, of course, the return would be expected to show the facts and circumstances relied on to justify the imprisonment. In a vast majority of such cases the hearing upon habeas corpus would be the first judicial hearing of the parties upon the questions involved. In such cases, and especially in all cases of private restraint, there would seem to be, if not a clear necessity for it, at least a peculiar fitness in admitting evidence of all the facts important to be known to enable the court to determine whether the imprisonment was illegal.

The following reasons may also be suggested why it is probable returns in such cases would more readily be allowed to be controverted than in cases within the habeas corpus act:

1st. They had not the same official sanction.

2d. The commitment for a "criminal or supposed criminal matter," implied some previous judicial investigation.

In the following case, decided in 1825, the court concede that where the commitment was under the act, 31 Car. 2, the return could not be controverted.

In Ex parte Beeching and others, 6 Dowl. & Ryl., 209, writs of habeas corpus were issued to bring up prisoners, alleged to have been taken into custody at sea, under the provisions of the Customs Acts, and carried to the city of Rochester, and detained an unreasonable length of time for the purpose of being examined before a justice of that city, contrary to the provisions of the 57 Geo. 3, c. 87, sec. 6, which enacts that persons arrested under the authority of that statute, shall be conveyed before one or more justices of the peace, residing near to the place where such persons shall be so taken or arrested.

The return alleged, amongst other things, that the prisoners had been carried to Rochester with their own consent, and were there detained for the purpose of being examined on a charge of smuggling, whereupon affidavits were tendered on behalf of the prisoners, for the purpose of contradicting the facts stated in the return.

The court at first doubted its authority to inquire into the truth of the return, but finally heard the affidavits.

ABBOTT, Ch. J. "If no decision has taken place upon this statute, it is probable that the point was never made before. The object of the habeas corpus act, 31 Car. 2, c. 2, was to provide against delays in bringing to trial such subjects of the king as are committed to custody for criminal or supposed criminal matters. The person making this return is not an officer to whose custody these persons have been committed, but he is a person who by the authority given

him has taken them into custody. It seems to me, therefore, that the writs of habeas corpus in this instance are not to be considered as writs issuing under the statute, 31 Car. 2, but as writs issuing at common law, under the general authority of the court, and consequently that the discussion of the truth of the return is left open by virtue of the 56 Geo. 3, c. 100, sec. 4.

"This is not the case of a committal to a jailor, or an officer of the court, for an offence known as a crime, and the only question is whether this is a criminal matter. The object of the 56 Geo. 3, was to give the party a summary remedy, by controverting the truth of a return, instead of putting him to bring an action for a false return.

"There is very good reason for not permitting the truth of a return to be traversed where the party is charged with a crime, for that would be trying him upon affidavits; but here we are not called to try whether these persons have committed an offence, or that which may be called an offence. The objection to the proceeding against these persons is that they have been carried a distance of one hundred and forty miles from the place where they were originally arrested. Part of the allegation of the return is, that they were taken to Rochester with their own consent. Now, I think, the truth of the return in that respect may be controverted. The 56 Geo. 3, was passed in furtherance of the liberty of the subject, and therefore ought not to receive a restrained construction."

The merits of the case were then discussed on affidavits, and the prisoners were remanded.

How far a court in the exercise of appellate jurisdiction over another made subordinate to it, having power by the writ of certiorari to compel the production of the record of the inferior court and also the depositions and examination upon which the com

mitment was founded, may review the grounds upon which the inferior court acted, and receive additional evidence with a view to discharge absolutely or let to bail, are questions which will more properly be considered hereafter.

Upon the whole it may be concluded:

1st. That in commitments for criminal or supposed criminal matters, the truth of the facts stated in the return upon which the commitment was founded could not either at common law or under the habeas corpus act, 31 Car. 2, be controverted with a view to the absolute discharge of the prisoner.

With a view to bail, however, extrinsic evidence might be received, 2 Hawk. P. C., ch. 15, § 79, though it was sometimes rejected. 1 Chitty Cr. L., 130.

There are occasional exceptions, as we have seen, to be met with to the rule as above stated, but they rest upon no well defined principle. But how far particular instances of departure are to be regarded as indefensible anomalies, must depend upon the obligatory force of a general rule in a proceeding so summary, and in many respects so discretionary as that in habeas corpus.

2d. That in cases of imprisonment or restraint, other than for criminal or supposed criminal matters, the truth of the facts set forth in the return could not as a general rule be controverted.

But this rule was subject to exceptions. One, clearly established, was that of impressment. This, however, was governed by a principle sufficiently comprehensive to include most other cases, to very many of which it was undoubtedly in the discretion

of the court extended in practice, viz., that the prisoner had no other effectual remedy. The result is that in cases of commitments for criminal or supposed criminal matters, it is impossible to specify those in which the truth of the return could be controverted, and in all other cases it is impossible to specify those in which it could not.

SECTION X.

EFFECT OF THE RETURN IN THE UNITED STATES.

In the United States, the doctrine of the incontrovertibility of the return has often been recognized as the rule of the common law; though its qualifications do not appear to have been, at any time, very critically considered.

1. In the Federal Courts. Congress never having provided any particular rules of procedure under the writ of habeas corpus, the federal courts look to the common law as their guide. What that was may be seen by reference to the preceding pages.

The Supreme Court of the United States have pronounced no opinion upon the point, but it has recently been under examination in some of the Circuit and District Courts.

In the case Ex parte Jenkins et al., 2 Wallace Rep., 521, the Circuit Court, Grier of the Supreme Court and Kane district judge, held: That in the case of an arrest on state process, whether issued in a criminal prosecution or a civil action, of an officer of the United States, for an alleged abuse of his powers,