shall proceed in a summary way to hear such allegations and proofs as may be produced in support of such imprisonment or detention, or against the same, and to dispose of such party as the justice of the case may require."

These provisions are retained in the last revision of the statutes. 2 Rev. St., 1852, 802, sec. 64.

It was the opinion of Mr. Justice Cowen, in the case of The People v. McLeod, 1 Hill, 377, that the words above quoted "are satisfied by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted, or which it may be in the prisoner's power to adduce at the trial." The same view is maintained in Mr. Hill's note 30, 3 Hill, 658.

In the cases, however, of The People v. Tompkins, 1 Parker Cr. Rep., 224, and The People v. Martin, ib., 187, the question was very fully examined and the authorities reviewed by Mr. Justice Edmonds, of the Supreme Court, who held that the Supreme Court, in the exercise of its common law appellate jurisdiction in criminal matters, and any member of it out of court, under the statute might, where the commitment was by an examining magistrate before trial, not only review the grounds of commitment upon which the magistrate acted, but hear new proofs, and bail, discharge or remand the prisoner as the justice of the case might require.

But the judge admitted that the power was subject to important qualifications.

"In thus asserting and defending," said he, "the high prerogative of administering relief against unjust imprison

ment, as existing in this court at common law and in its members out of court, under the statute, I must not be understood as maintaining that the appellate power thus conferred can or will be exercised in a wild or loose or arbitrary manner, or that an appeal exists as a matter of course in every case of a commitment, with a right to demand a review of the grounds of the commitment.

"Where the party is in custody, by virtue of a final judgment of a court of competent jurisdiction, he must be immediately remanded. 2 R. S., 567, sec. 40. If the party is in custody on an indictment found for felony not bailable, there being no means of ascertaining the grounds on which the indictment is predicated, he will be remanded. McLeod's case, 25 Wend.

"If in custody on process merely irregular, he will be remanded on habeas corpus, and be remitted to the proper court to correct and remedy the formal defects in its own process. People v. Nevins, 1 Hill, 154; Bank of U. S. v. Jenkins, 18 Johns., 305.

"If detained on civil process, regular and valid on its face, the examination will be confined to the jurisdiction of the power which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner to his discharge. Ibid.

"If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into, to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion, upon the evidence given before him; whether he may not have been governed by malice, or have exceeded his jurisdiction; and whether he may not have mistaken the law, or, in the language of Lord Ellenborough, in the case of Sir Francis Burdett against the Speaker of the House of Commons, 14

East, 1, to ascertain whether the commitment was not palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice. Confined within these limits, the inquiry can be effectual for the protection of personal liberty against oppression under color of legal process. Extended beyond it, it might be eminently mischievous in retarding the due administration of justice, and therefore, though the power of exceeding those limits is clearly conferred, no discreet judge will step over them, unless for some palpable and overpowering

cause."

The issue may be one of law simply, as where the facts stated in the return are not controverted.

Mr. Justice Wilmot, although he maintained that the nature and quality of the fact with which the party is charged and the jurisdiction which has taken cognizance of it are the only matters to be considered on the return, and that the existence of the facts stated in it could not be controverted, correctly described the issue of law.

“The writ,” said he, "is not framed or adapted to litigating facts; it is a summary, short way of taking the opinion of the court upon a matter of law, where the facts are disclosed and admitted; it puts the case exactly in the same situation as if an action of false imprisonment had been brought, and the defendant had set forth the facts to justify the imprisonment and the plaintiff had demurred to the plea." Wilmot's Opinions, 106.

Motion to discharge. This issue may be made and usually is on motion, though in the case of Hovey

and wife v. Morris, 7 Blackf., 559, a demurrer to the reply was allowed. Where it is desired to test the sufficiency of the return in law, it may be done on a motion to discharge the prisoner, which has the effect of a demurrer. On this motion the return is conceded to be true. "The return," said Lord Denman, in Watson's case, 36 Eng. C. L., 237, "must necessarily be received as true in all particulars that appear upon it in the present stage, in which its sufficiency alone is examined. We are sitting as on a demurrer, or a writ of error on the judgment of another court."

SECTION II.

ISSUES OF FACT AND LAW.

The issue may be one of fact and law, where the facts stated in the return are either controverted or confessed and avoided.

It has been seen that the facts stated in the return may be controverted; but the issue to be raised must have a necessary connection with the question of the legality of the imprisonment. It has sometimes been attempted to bring into consideration other matters, as will be seen hereafter, but they have been uniformly rejected. It is important, therefore, to note the class of facts which may properly be put in issue. The field of inquiry on this point of practice has not been accurately defined, and some obscurity has been occasioned, perhaps, by not sufficiently attending to the true nature of the writ and the questions which it necessarily involves.