often happens that a judge is forced to decide the most embarrassing and delicate questions on the return to that writ. The writ itself applies to all cases of illegal detention of the person except that which grows out of the relation of master and slave, and it would apply to that also but that another remedy is provided, which seems virtually to exclude a resort to the writ of habeas corpus."

In the matter of Wakker, 3 Barb. Sup. Ct. Rep., 162, it was held that where the warrant on which the prisoner was arrested was issued by a person who was acting as a police justice de facto, under color of an election in pursuance of an act of the legislature, that was sufficient on habeas corpus to detain him; and that the writ of habeas corpus could not be converted into a quo warranto in order to determine whether he was a police justice de jure.

CHAPTER V.

THE HEARING.

Section I. THE MODE OF TRIAL.

II. THE EVIDENCE.

IIL CUSTODY OF PRISONER PENDING THE TRIAL.
IV. ATTACHMENT FOR CONTEMPT.

SECTION I.

THE MODE OF TRIAL.

The trial has always been to the court or judge and hence is commonly called the hearing. Although the trial of questions of fact under the writ by the court has been deprecated as infringing the right of trial by jury, Wilmot's Opinions, 106, yet the inconvenience and delay consequent upon the jury trial; the desire of prisoners to obtain and of the judges to afford instant relief in cases of wrongful imprisonment, to which, perhaps, should be added the common opinion that an order in habeas corpus had not the force and effect of a final judgment, have overcome all objections, and the practice has long been settled in England and America of submitting all questions arising under the writ to the determination of the

court.

The provisions in the Constitution of the United States and of the several states, for the inviolability of the right of trial by jury, do not extend to pro

ceedings in habeas corpus as it has sometimes been claimed. It is not provided in the Constitution of any state that all issues of fact shall be tried by a jury. The provision in all is that the right of jury trial shall not be violated; that is, the right as it was understood and enjoyed at the time of the adoption of the Constitution. And as such trial was not then demandable as a matter of right in a habeas corpus proceeding, any more than it was in a proceeding in equity, it is not now. It is, however, within the power of the court, perhaps, in the exercise of its discretion, to direct an issue of fact under the writ to be tried by a jury. This has sometimes been done but the practice has not met with general favor.

The mode of trial has been the subject of observation in several cases.

In the matter of Hakewell, xxii. Eng. Law and Eq., 395, there is an intimation that a jury in some cases might be employed. That was a habeas corpus by the mother to obtain possession of her children from their father, and consequently was conducted under the provisions of the act 56 Geo. 3, c. 100, which enacts, section 3, "That in all cases provided for by this act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron, before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in the return by affidavit, &c., and do therein as to justice shall appertain." Jervis, Ch. J., alluding to the doubt expressed in the case of Watson, 36 Eng. C. L., whether there be any mode, other than by action, of impeaching the truth of such return or

of introducing new matter, says: "I must confess I should have thought it was competent to the party, at whose suit the writ is obtained, to impeach the return upon affidavit, or to traverse it and go to a jury, or to argue upon the return that it does not justify the detention."

In New Jersey, an application to the court to empannel a jury to ascertain the facts in a case of habeas corpus, was refused as early as 1782. In the case of The State v. Farlee, Coxe, 41, the application was renewed in the year 1790, when it was again refused. The court said: "We have no power in such a case to order a jury. *** The writ is a writ of right, intended for the protection of individuals against arbitrary and illegal detention; and we are to decide upon it in our own constitutional capacity, sitting here to superintend the liberty of the citizen, and to protect it from violation." To the same effect is the case of The State v. Beaver et al., Coxe 80, in the year following.

In Pennsylvania, however, in 1798, it was said by the court in the case of Respublica v. The Gaoler, &c., 2 Yeates, 258, that "We are called on to examine into the facts relating to the case (2 Dall. St Laws, 246, sec. 13), and must, in some instances, necessarily determine contested facts. If we had any doubt whether the true person was arrested, we should hold ourselves bound to submit the matter to a decision by a jury."

In the case of Graham v. Graham, 1 Serg. and Rawle, 331, in 1815, on a habeas corpus pending in the court of Common Pleas of Philadelphia county,

the court ordered an issue to try whether a certain Edward Simmons had a right to hold Shephard Graham by virtue of an indenture of apprenticeship, whereby the said Shephard was bound to the said Simmons until he attained the age of fifteen of fifteen years, to be instructed in the art of chimney sweeper. A verdict was given in favor of Simmons, which was set aside and a new trial ordered. On a second trial the jury found against Simmons, but a bill of excep

tions was taken.

In the Supreme Court,

TILGHMAN, Ch. J., said: "The habeas corpus act (1785), authorizes the court to decide both fact and law; but it has been the practice in the Common Pleas to direct an issue for trial of facts in doubtful cases. The right to order an issue is not denied, but it is said that when an issue is ordered, the court have parted with all their power over the facts. It is true they have so far parted with their power that they cannot themselves decide the fact. But they still retain the superintending authority over the verdict. This authority is incident to the trial by jury by the principles of the common law, where the trial is in a court of record of general jurisdiction, such as the court of common pleas."

In Vermont, Ex parte Davis, 18 Vt., 401, it was said that where a debtor, who has been imprisoned, grounds his claim to be discharged upon certain papers or documents prescribed by statute, he may enforce his right by habeas corpus; but where he grounds it upon matter in pais, upon which an issue to a jury might be expected to arise, he should be put to his audita querela.