THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES S. WHITMAN, District Attorney of the County of New York,
The Honorable JOHN WOODWARD, a Justice of the Supreme Court of the State of New York, and CHARLES H. HYDE, Defendants.
RETURN of an alternative writ of prohibition, issued on the 8th day of April, 1912.
Charles S. Whitman, District Attorney [Robert S. Johnstone, Assistant District Attorney, and J. Robert Rubin, Deputy Assistant District Attorney, with him on the brief], for the relator.
Frederic R. Coudert, for the defendant Hon. John Woodward.
Max D. Steuer, for the defendant Charles H. Hyde.
The Code of Criminal Procedure (§ 25) provides: 'During the session of the Supreme Court in any county, no person detained in a county jail of such county, upon a criminal charge, shall be removed therefrom by writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court.' Hyde, the respondent herein, was so detained for trial in the Supreme Court in session for the county of New York, and upon his petition Mr. Justice WOODWARD in the county of Kings issued a writ of habeas corpus returnable before himself. The district attorney asserts
that the writ was returnable only to the Supreme Court in the county of New York, while the petitioner therein urges that the statute, so far as it so commands it, violates the Constitution of the State (Art. 1, § 4) and of the United States (Art. 1, § 9, subd. 2): 'The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.' The privilege of this common-law writ is of such high value that no sensible impairment of it may be tolerated under the guise of either regulating its use or preventing its abuse. If, then, the statute that gives the sole right to hear a writ to the Supreme Court in session where the prisoner is detained upon a criminal charge, in any appreciable degree suspends the privilege as it existed at common law, it is void. But where at common law is found the right to apply during term time to any judge of the realm not only for the writ but also for the hearing of it? I am referred to no such privilege and find none, and will show that it did not exist. And yet the respondent herein should prove, if he would invalidate the statute, that such was the law of England before the enactment of the Habeas Corpus Act of Charles II (31 Car. II, ch. 2). For that act in part reads: 'And to the Intent no Person may avoid his Trial at the Assizes or General Gaol-Delivery, by procuring his Removal before the Assizes, at such Time as he cannot be brought back to receive his Trial there; (2) Be it enacted, That after the Assizes proclaimed for that County where the Prisoner is detained, no Person shall be removed from the Common Gaol upon any Habeas Corpus granted in Pursuance of this Act, but upon any such Habeas Corpus shall be brought before the Judge of Assize in open Court, who is thereupon to do what to Justice shall appertain.' (§ 18.) Thereby the open court to which the prisoner was amenable had sole cognizance of the writ. But during the session of the court a judge had no jurisdiction even before the act of 1679. By the common law the writ issues 'out of the court of king's bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions * * *. If it issues in vacation, it is usually returnable
before the judge himself who awarded it, and he proceeds by himself thereon; unless the term shall intervene, and then it may be returned in court.' (Chase's Blackstone, 687.) Indeed it was the denial of the power to issue the writ in vacation by NOTTINGHAM, Lord Chancellor, in the Jenks case (1676) that influenced the passage of the act. Blackstone states (p. 688) that in that case 'notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation,' and that in the same case 'the chief justice (as well as the chancellor)' declined 'to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum, & c., whereby the prisoner was discharged at the Old Bailey.' I make such reference to illustrate the limited power of the judge at common law in vacation to issue the writ, and what is due the statute in that regard. I would also show how dependent the remedy is upon the statute by tracing a little its history. Violation of the privilege is suspension of the writ.
In the 34th Elizabeth twelve judges returned to her ministers the resolutions or articles (And. 297), which, as Hallam says (Const. Hist. vol. 1, p. 379), 'acknowledges the special command of the king, or the authority of the privy council as a body, to be such sufficient warrant for a commitment as to require no further cause to be expressed, and to prevent the judges from discharging the party from custody, either absolutely or upon bail.' In reliance upon this precedent, or an erroneous report of it, the decision was made in the case of Darnel and others (3 Car. I, 1627), to whose writ was made return by the warden that they were detained by warrant of the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of the king. (Hallam's Const. Hist. vol. 1, p. 376.) The prisoners were remanded. 'It was evidently the consequence of this decision [I continue the words of Hallam] that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter, since the insertion of four words in a warrant (per speciale mandatum regis), which might become matter
of form, would control their remedial efficacy.' This decision led to the enactment of the Petition of Right (3 Car. I), notwithstanding which, 'in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his Majesty's command, the decision wherein, as Blackstone states, 'was heard with indignation and astonishment by every lawyer present,' and, he adds, 'These pitiful evasions gave rise to the statute of 16 Car. I, C. 10, § 8, whereby it was enacted, that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay, upon any pretense whatsoever, a writ of habeas corpus, upon demand or motion made to the Court of King's Bench, or Common Pleas. "' In face of such statutory aid, in the Jenks case, the chief judge and chancellor found in their alleged disability in vacation a device to defeat the writ (Hallam's Const. Hist. 20), and there followed in 1679 the Habeas Corpus Act of Charles II, 'the noble enactment,' says the historian Knight, 'which made that clause of the Great Charter which secures the personal liberty of every Englishman a living principle instead of a dead letter,' adding that 'the strictness and promptitude of the proceedings under' it 'struck the old weapon of tyranny out of the hands of the powerful.' Blackstone says of it: 'The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II, ch. 2, which is frequently considered as another magna charta of the kingdom: and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty' (p. 691), and he later adds: 'But ...