State v. Malone

• Decision Date: 30 April 1856
• Citation: 35 Tenn. 699
• Parties: THE STATE ex rel. v. MALONE, et al.
• Court: Tennessee Supreme Court

35 Tenn. 699

THE STATE ex rel.

v.MALONE, et al.¹

Supreme Court of Tennessee.

Apr Term 1856.

It will be seen by reference to the case of The State ex rel. v. Malone et al., that the supreme court of Tennessee has decided that no appeal or writ of error lies from the judgment of a competent tribunal upon a case brought before it by writ of habeas corpus. Upon this question there has been some diversity of opinion and adjudication in the courts of this country. In view, however, of the objects and purposes of this great constitutional remedy, it seems that the reasoning of the court is conclusive as to the correctness of the decision. In this state there is no practice upon this subject, established by statute, save certain meagre provisions which chiefly relate to the enforcement of the attendance of witnesses; and indeed very few questions connected therewith have ever been presented to our highest judicial tribunal. The Reporter has, therefore, deemed it an acceptable service to the profession and the public to transfer to this volume a learned treatise upon the writ of habeas corpus, and the practice connected therewith, originally contributed to the Law Magazine, for November, 1855, and reproduced in Messrs. Fish and Wharton's American Law Register (Philadelphia), for March, 1856:

THE WRIT OF HABEAS CORPUS.²

The liberty of the subject has from the earliest time been protected by our common law, as evidenced by the celebrated 29th chapter of Magna Charta, which declares (for it is but declaratory of the law) that “no freeman shall be taken or imprisoned, or disseized of his freehold or liberties,” etc., “or be any otherwise destroyed,” etc., “nisi per legale judicium parium suorum vel per legem terrae.” “No man,” says Lord Coke, in his commentary upon the above chapter of Magna Charta, “shall be taken, i. e., restrained of liberty, by petition or suggestion to the king, or his council, unless it be by indictment, or by presentment of good and lawful men.” 2 Inst. 46. Thus much as to the great principle of personal freedom recognized by our law. Then as to the remedy for its invasion. “If,” says the same authority (4 Inst. 290), speaking of the forest laws, “it be demanded, What if a man be unjustly imprisoned under color of those laws, and afterwards offer sufficient pledges, and they be not taken, what remedy is there for the plaintiff? The answer is that in the term time he may have, ex merito justitiae, a habeas corpus out of the king's bench, or out of the court of common pleas, or of the exchequer; or out of the chancery, either in term time or vacation; and upon the return of the writ he shall be bailed.” So in the Institute just cited (fo. 182), after designating as “odious” the unjust imprisonment or detaining of any freeman in prison, after mentioning various remedies, now obsolete, which “the law hath allowed for the relief and ease of the prisoner,” Lord Coke adds, “but the readiest way of all is by habeas corpus, in the term time, or, in vacation, out of chancery.” And to return once more to the 2d Inst. (fo. 55), we there read: “Now, it may be demanded, If a man be taken or committed to prison contra legem terrae, what remedy hath the party grieved? To this it is answered: 1st. That every act of Parliament made against any injury, mischief, or grievance, doth either expressly or impliedly give a remedy by action to the party wronged. 2d. The party falsely imprisoned may indict for the injury done him. 3d. He may have a habeas corpus--upon which writ the goaler must return by whom his prisoner was committed, and the cause of his imprisonment, and if it appeareth that his imprisonment be just and lawful, he shall be remanded to gaol; but if it shall appear to the court that he was imprisoned against the law of the land, they ought, by force of this statute (Magna Charta), to deliver him; if it be doubtful, he may be bailed.”

Various cases, ancient and modern, both prior to and since the Habeas Corpus Act, might be cited to show that the writ of which we are now speaking lies at common law. “This invaluable writ,” says Lord Campbell (Ex parte Sandilands, 21 L. J., Q. B. 342), “could always be obtained where a person had been improperly deprived of liberty. From the earliest times, before the Habeas Corpus Act, a writ issued in such cases, calling upon the party detaining to show if any just cause existed for the detention--but this was always on the supposition that liberty was interfered with.”

In Thomlinson's Case (12 Rep. 104), we have an instance of habeas corpus at common law. It there appears that the said Thomlinson had been committed by the court of admiralty for refusing to answer on his oath to certain interrogatories proposed to him in a suit there instituted, and accordingly he brought his habeas corpus, to which the marshal of the prison of the admiralty returned that his prisoner “had contumaciously refused to submit himself to examination;” and this return was held to be insufficient, on the ground that it was too general, and because it did not specify for what cause or matter the prisoner had been examined. See, also, Bourn's Case, Cro. Jac. 543; a mem. in Cro. Car. 466, for allowing prisoners confined in certain jails, who could give bail, to go at large when the plague was prevalent in London; Ex parte Besset, 6 Q. B. 481.

Long, indeed, before the time of Coke, the writ of habeas corpus may be clearly proved to have been in use, and in the reign of Henry VI. “it seems to have been familiar to, and well understood by, the judges,” as remarked by Mr. Fry, in his learned and interesting dissertation upon the writ of habeas corpus, prefixed to his Report of the Canadian Prisoner's Case, p. 7 (reported also as Leonard Watson's Case, 9 Ad. & E. 731; and Re Parker, 5 Mee. & W. 32).

An examination of precedents has, moreover, shown that the remedy by habeas corpus was originally used as between subject and subject, rather than by a subject against the crown; but from the reign of Henry VII. cases are to be met with in which the writ was sued against the crown; and in the reign of Charles I. the arguments in Sir Thomas Darnell's Case, 3 State Trials, p. 1, show that the nature of this writ as an admitted constitutional remedy was at that time well appreciated. The case just cited, as the learned reader need not be reminded, led the way to the Petition of Right (3 Car. I., ch. 1) which contains an emphatic protest against the denial of the writ of habeas corpus, and against illegal imprisonment thereby occasioned. See secs. 5, 10; see, also, Hallam's Constitutional History, vol. 1, p. 414, etc.

The writ of habeas corpus ad subjiciendum, with which we are on this occasion exclusively concerned, is, to use the words of Blackstone, “the great and efficacious writ in all manner or illegal confinement. It is directed to the person detaining another, and commands him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.” 3 Bla. Com. 131. In order, however, to justify issuing the writ at common law, it must be shown that liberty is being interfered with--that the party on whose behalf the application professes to be made is coerced, and not a free agent. The writ in question, accordingly, will not be granted on the application of a man to bring up the body of his wife, unless it be shown that she is under coercion, or subjected to imprisonment--this case obviously differing from that of an infant, whose parent has the right to the custody of the child, so that, if of tender years, the court will order it to be delivered to the father--but the husband has at common law no such right to the custody of his wife (Ex parte Sandilands. 21 L. J., Q. B. 342. Re Hakewill, 12 C. B. 223,¹ indeed, is a distinct authority to show that the father is legally entitled to the custody of his legitimate infant children. “The case of illegitimate children obviously stands upon a totally different footing.” Id., per Creswell, J. In re Lloyd, 3 Man. & G. 547, a writ of habeas corpus had been obtained by the mother of an illegitimate female child, for the purpose of bringing her up from the custody of a party with whom she had been placed by her putative father. The child, about eleven years of age, was thereupon brought into court in obedience to the writ, and was asked if she wished to go with her mother, and expressing a disinclination to do so, was allowed to retire with her attendant. This case forcibly illustrate the general rule that a habeas corpus will be granted only where the party on whose behalf it is applied for is under coercion or restraint. So in Ex parte Child, 15 C. B. 238,² a rule having been obtained or a habeas corpus to bring up a lunatic, confined in an asylum in this country under Irish medical certificates, the court discharged it with costs, there being no affidavit to show that the party promoting the application was duly authorized by the lunatic. “A mere stranger,” remarked the chief justice of the common pleas, “has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint.” ³

There does not appear, however, to be any technical or arbitrary restriction in regard to the purposes for which the writ which we are now considering may issue. It is due to any person complaining of unlawful detention, and is employed for the purpose of removing prisoners, of bringing them up to be bailed--of bringing up infants improperly detained, etc., etc., (Re Belson, 7 Moo. P. C. C. 114); the form of writ of habeas corpus having anciently varied according to the precise object for which it was required. Before the writs were in English, when the...