Walton v. Gatlin

• Citation: 1 Win. 318,60 N.C. 310
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1864
• Parties: EDWARD S. WALTON v. T. H. GATLIN.

1 Win. 318

60 N.C. 310

EDWARD S. WALTON

v.T. H. GATLIN.

Supreme Court of North Carolina.

June Term, 1864.

Where the object of a writ of habeas corpus is to inquire whether there be probable cause for commitment, the decision on it is not the subject of review by writ of error or certiorari.

Where the question on a writ of habeas corpus is concerning the power of the committing Magistrate or Court, or the legality of the commitment, the weight of authority is in favor of the doctrine, that the decision is the subject of review.

The decision on a writ of habeas corpus to free a person from restraint for any other cause than the commission of a criminal offence, is a judgment, and the subject of review by writ of error or certiorari.

The Supreme Court has the power to review the action of the Superior Courts, and of the Judges in vacation, upon questions of law in all cases under the 10th section of the habeas corpus Act.

The cases of Binford vs. Alston, 4 Dev., 337, American Bible Society vs. Hollister, 1 Jones, Eq., 10, and Smith vs. Cheek, 5 Jones, 213, and exparte Bryan, cited, commented on and approved.

On the first day of the term Bragg and Strong, on behalf of Gatlin, a Captain in the army of the Confederate States, moved for a writ of certiorari to be directed to the Honorable Richmond M. Pearson, Chief Justice of this Court, commanding him to certify, under his hand and seal, into this Court the record of a writ of habeas corpus, issued by him at the suit of Walton against Gatlin, and the proceedings thereon before the said Chief Justice and his judgment thereon, suggesting that in the proceedings and judgment there was error in law to the injury of the said Gatlin.

It appeared that Walton had applied to Chief Justice Pearson on the 27th January, 1864, for a writ of habeas corpus, alledging that he had been arrested and was detained in custody by T. H. Gatlin, a Captain in the army of the Confederate States, as a person subject to serve as a conscript, he being legally exempt from such service. The writ was granted by the Chief Justice, returnable before himself, and was served on Capt. Gatlin, who made a return thereon to the effect that Walton was liable to serve as a conscript under the Act of Congress of the 5th of January, 1864. The Chief Justice decided on the 19th February, 1864, that Walton was not liable to service on the conscription Acts, and discharged him; but, on an intimation of the counsel who appeared on behalf of the Confederate States that he would move at the next term of the Supreme Court for a writ of certiorari, the Chief Justice bound Walton in a recognizance to appear in the Supreme Court on the second Monday of next term.

The Court ordered the motion to stand over for argument on the second Monday of the term, when it was argued by Bragg, Strong and Winston, Sr., in support of it, and by

Moore and Boyden against it.

PEARSON, C. J.

The motion on the part of the defendant for a certiorari, or other appropriate writ to bring up this case for review on the question of law, was opposed by the counsel of Walton on two grounds:

1st. It was insisted that the action of a single Judge in vacation, on a writ of habeas corpus, is not the subject of review The counsel relied on the authorities cited, and the reasoning of Judge Kent in Yates vs. the People of New York, 6 Johnson, 397, and of Judge Baldwin in Holmes vs. Jennison, 14 Peters, 614.

These cases show that there is a conflict of decisions and a great contrariety of opinion on the question. Any one who reads them will become satisfied that the amount of talent and learning bestowed on the subject has tended to mistify rather than elucidate it. When the stream becomes too muddy to see the bottom, the surest way to find truth is to go up to the fountain head; that is, “to the reason and sense of the thing.” We believe the conflict and confusion found in the books in regard to this question are mainly to be attributed to the fact of not keeping in view the distinction between a habeas corpus “when one stands committed for a crime,” and a habeas corpus when one is imprisoned or otherwise restrained of his liberty for some cause other than the commission of a criminal offence. This distinction is pointed out in “Caine's case.” Judges Kent and Baldwin, in the cases referred to, had their minds fixed upon the former class of cases and do not advert to the distinction.

The object of a commitment is to secure the attendance of the party at the trial; and it is the duty of the committing magistrate to make an examination, enquire into the circumstances, and to discharge the person arrested, or remand him, or take security for his appearance, according to the nature of the offence, and the degree of proof. This proceeding is not the subject of review by writ of error or certiorari, for the reason that there is no trial and no judgment, but a mere inquiry, to see whether the person accused ought to be tried; indeed, when the law is duly administered, the trial will take place, before a writ of error or certiorari could be disposed of in the course of the Court. The Courts, however, exercise a supervising jurisdiction over the action of the committing magistrate, by means of the writ of habeas corpus, and enquire into the legality of the commitment, and the question of probable cause. This proceeding is in lieu of a writ of error or certiorari, and is not the subject of review by either of those writs, when it turns on the question of probable cause; for, like the proceeding before a committing magistrate, it is not a trial; there is no judgment; it is a mere inquiry. When it turns on the power of commitment or its legality, the question is not so clear. There is much force in the authorities cited, and in the reasoning of Judge Kent and Baldwin, although the weight of authority in this country is on the other side; for in Yates vs. the People of New York, the decision is against the opinion of Judge Kent. In Holmes vs. Jennison, a majority of the Judges differ from Judge Baldwin, and in the late case of Ableman vs. Booth, 21 Howard, 506, the jurisdiction by writ of error is assumed by the Supreme Court of the United States, and the point seems to be conceded.

The superintending jurisdiction over committing magistrates, was intrusted to the Judges in vacation 32, Charles 2, ch. 2, Rev. Code, ch. 55, sec. 1.

The purpose of a writ of habeas corpus, where one “is restrained of his liberty for some cause other than the commission of a criminal offence,” is altogether different. In ancient times, in such cases, the writ “ de homine replegiando” was used. It was an original writ, by which an action was instituted, when a person was restrained of his liberty, unless committed for crime, and the right to the services and custody of the person was determined, Fitzh. N. B. 68, Com. Dig. Pleader, 3 K. 1. Imprisonment L. 4 2 Inst. 55, 3 Mod. 120. There can be no doubt that the judgment in this action was the subject of review by writ of error. This original writ is now superseded by the judicial writ of habeas corpus, as a more speedy and summary remedy, called for by the nature of the case, which the Courts issued under their common law jurisdiction. In the proceeding instituted by this writ, the right in controversy is determined by a judgment, and no reason can be assigned why such judgment is not the subject of review, in the same way as the judgment in the old action “ de homine replegiando,” or any other action or proceeding in which the Court renders a judgment; because thereby the right of the parties is adjudicated and determined. It is true, if the plaintiff seeks for damages he must follow it up, by an action of trespass for assault and battery and false imprisonment, as the action of ejectment which is substituted for the old real actions, is followed up by an action of trespass for mesne profits; but that is no reason why the judgment should not be the subject of review.

This jurisdiction is extended to the judges in vacation by 56, Geo. 3, (1816,) and by our statute, Rev. Code, ch. 55, sec. 10, (1836,) so the jurisdiction of a single Judge in such cases, is of very recent origin; which may, in some measure, account for the confusion in which the subject has been involved, by not distinguishing this class of cases from that of the case coming within the operation of the Act of Charles the 2d. The facts that so many writs of habeas corpus have been issued in the last two years, has elicited a closer and more serious investigation of the nature and purposes of the proceeding in cases of this kind, and the result is a clearer apprehension of the distinction between the two classes of cases.

The question is narrowed to this: is not the judgment of a single judge in the exercise of this jurisdiction conferred by statute of Geo. 3d, and our statute of 1836, subject to review for the same reasons, and on the same grounds, which are applicable to the judgment of the Courts in the exercise of their common law jurisdiction by habeas corpus. There are a suit, a trial, and a judgment, deciding the rights of the parties; and the fact of its being the decision of a tribunal composed of a single Judge, can furnish no reason why it should not be the subject of review by a higher tribunal. Certainly, the decision of a Judge in vacation, can not be put on a higher footing than the decision of the same Judge in term time.

For illustration. The case of Zeigenfuss vs. Hastings and others, 2 Ired. 463, presented this question of law: has a creditor the right to take the body of his debtor by writ of capias ad satisfaciendum, after the debtor has filed his petition in bankruptcy and given notice, but before a decree of bankruptcy? The case was constituted before a single Judge by a writ of habeas corpus under the 10th section of the Act of 1836. The Judge decided against the debtor. It was an adjudication of the rights of the parties.

So Pru...