fact that great wrongs had been perpetrated, and the punishment as for a single misdemeanor was deemed entirely inadequate to the offence, and the public mind was greatly excited, and called for what would be called an approximate vindication of the law, and a somewhat appropriate punishment for the offender. I would not be thought to differ with the trial court in respect to the character of the offence, or of the inadequacy of the statutory punishment upon a single conviction. The remedy was by several indictments, if the offences were distinct. But the courts can only administer the laws as they find them, and it is far better that the most guilty should escape, than that the law should be judicially disregarded or violated. A greater public wrong would be committed, one more lasting in its injurious effects, and dangerous to civil liberty and the sacredness of the law, by punishing a man against and without law, but under color of law and a judicial proceeding, than can result from the escape of the greatest offender, or the commission of the highest individual crimes against law. Neither the cause of justice or of true reform can be advanced by illegal and void acts, or doubtful experiments by courts of justice, in any form, or to any extent. From some expressions of judges, and the remarks of text-writers, there was some color for the idea that several distinct offences could be tried at the same time. But there was no real or true warrant in this state for several and distinct judgments upon a single indictment in the law, and for that reason the prisoner should have been discharged upon the expiration of the imprisonment for one year and the payment of a fine of $250. The judgment and orders of the Supreme Court and of the Oyer and Terminer must be reversed, and the prisoner discharged. See, also, In the Matter of Ah You, 88 Cal. 99, supra, where the petitioner was on habeas corpus released because the term of imprisonment imposed was longer than was by law proper; and Longenberg v. Decker, 131 Ind. 471, and Ex parte Lehman, 60 Miss. 967, supra, where petitioners were released from imprisonment for contempt because the orders committing them for contempt were in excess of the jurisdiction of the authorities making them. IV. COMMITTING MAGISTRATES. IN RE ROBERT M. MARTIN. Circuit Court of the United States. February, 1866. This was a writ of habeas corpus directed to the Marshal of the Southern District of New York, commanding him to bring the body of Robert M. Martin before the court. As the petition for the writ alleged that the prisoner was detained in custody under a warrant of commitment issued by a United States Commissioner, a writ of certiorari, also, was issued by the court to the commissioner, directing him to send up the proceedings and evidence upon which such commitment was founded. SHIPMAN, J. The power of this court to grant the writ of habeas corpus is not denied, and, therefore, need not now be dwelt upon. Neither shall I discuss at much length its power to grant the writ of certiorari, as ancillary to the former writ. The courts of the United States being courts of limited, though not of inferior jurisdiction, their powers must be sought for in the acts of Congress. The 14th section of the Judiciary Act, of September 24th, 1789 (1 U. S. Stat. at Large 81), provides, "that all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." Under the authority conferred by this act, the writ of habeas corpus has been repeatedly granted by the courts of the United States, and by the judges thereof. And, although the power to issue the writ of certiorari is not conferred by name, it is no doubt included under the general term, "all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." Accordingly, the Supreme Court of the United States in Ex parte Burford, 3 Cranch 448, and in the case of Ex parte Bollman, 4 Cranch 75, issued the writ of certiorari, as well as that of habeas corpus. These precedents would be quite sufficient to warrant this court in the exercise of its power to issue the former writ, for, jurisdiction in cases of habeas corpus is conferred upon the Supreme and Circuit Courts by the same words of the act, as well as the power to issue all other writs which may be necessary for the exercise of jurisdiction. The writ of certiorari has always been considered, in appropriate cases, as ancillary to that of habeas corpus, and has long been used by the courts of England and this country, as a means of rendering their jurisdiction under the latter writ effective. It is said in Bacon's Abridgement, (Hab. Cor. B. 3): "As the certiorari alone removes not the body, so the habeas corpus alone removes not the record itself, but only the prisoner with the cause of his commitment; and, therefore, although, upon the habeas corpus, and the return thereof, the court can judge of the sufficiency or insufficiency of the return and commitment, and bail or discharge or remand the prisoner, as the case appears upon the return, yet they cannot, upon the bare return of the habeas corpus, give any judgment, or proceed upon the record' of the indictment, order, or judgment, without the record itself be removed by certiorari." The next question is--what proceedings of the committing magistrate is the certiorari to operate upon and remove into this court? In determining this question, it is proper to notice, in the outset, the functions exercised by the commissioner in committing a prisoner to await the action of the grand jury. In this respect he exercises the powers common to all ordinary committing magistrates. If he finds probable cause to hold the party for trial, he commits him; if not, he discharges him. In neither case is his action final; or a bar to further proceedings. If the prisoner is discharged, he may be again arrested, and, on sufficient evidence, may be committed. If he is committed, he may apply to the court to reduce his bail, or the prosecuting officer may apply to have it increased, or to discharge him altogether. In none of these proceedings of the commissioner are his orders in the nature of a final judgment of a court of record; and it is a common practice for courts, in England and in this country, to which a party is committed for trial, to re vise just such orders as the commissioner has made in the present case. This court has repeatedly increased and diminished bail fixed by commissioners, and its authority has never been questioned. Now, in order that this court may exercise intelligently its undoubted authority over such matters, it must be able to go behind the mere formal order of commitment. In order to fix the amount of bail, it must be possessed of sufficient evidence as to what are the peculiarities of the offence committed-whether it is a merely technical breach of law, or one attended by circumstances of peculiar aggravation or atrocity. The importance of this power of the court, to look into the evidence as far as may be necessary, in order to decide whether it is proper or not to hold a prisoner in confinement, will be clearly seen on examining the condition of things if no such power existed. One of two results would follow. Either the prisoner would be kept in confinement just as long as the prosecution might see fit to hold him, or the court would be compelled to make a mere arbitrary order limiting the time within which he should be indicted or discharged. It often happens that prisoners are brought into a district for trial, long before the necessary evidence can be obtained for submission to the grand jury. This happens more frequently in the case of crimes committed on shipboard, in remote parts of the world; but it may and does occur in other instances. In such cases, the court would not, unless compelled to do so, arbitrarily limit the time within which an indictment should be found or the prisoner be released. It would be all-important that the court should look into the evidence upon which the prisoner was committed, that it might determine whether or not the circumstances surrounding the commission of the alleged crime were such as to warrant his further detention in the absence of an indictment. The extent of a justifiable delay would be different in different cases, depending upon the evidence. To put an order upon the District Attorney, that he should have his indictment in court by a given day, or that the prisoner be discharged, without looking into the evidence, would be a blind exercise of power, little meriting the term judicial. This the court would be compelled to do, unless it had control over, and the power to examine into, the evidence, or else leave the prisoner virtually in the hands of the prosecutor and to such term of confinement as he might think proper. There is another important consideration which it is proper to advert to. As this court has the power to issue writs of habeas corpus, for the purpose of inquiring into the cause of commitment (1 U. S. Stat. at Large, 81, § 14; Ex parte Watkins, 3 Peters, 193, 201), it would be compelled in the exercise of this power, where the warrant of commitment was irregular and void on its face, to discharge from arrest, unless it could go behind the warrant and examine into the evidence upon which it was founded. This, as I have already shown, would sometimes be impracticable, unless the court could resort to the evidence upon which the commissioner acted, and which might be within reach of the court, on the return to the habeas corpus, only through the commissioner's minutes or his own testimony. For these reasons, the commissioner who committed the prisoner in this case must answer the certiorari, by producing the evidence taken before him. As this evidence was, I suppose, substantially reduced to writing by him on the hearing, it will be sufficient to produce his minutes thereof, and the affidavit upon which the original warrant of arrest was issued. The warrant itself and the order of commitment are already before the court. To avoid all misconception, it may be well to remark, that the principles here laid down, have no necessary relation to the powers conferred upon commissioners under the laws touching the execution of extradition treaties. The return to the certiorari having been made in conformity to the above decision, and the question of the further detention or discharge of the prisoner having been heard, the court proceeded to render the following decision: SHIPMAN, J. The evidence and proceedings upon which the pris oner, Robert H. Martin, was committed to await the action of the grand jury in this court, have been carefully examined and considered by the court. The question now to be determined is, whether he shall be remanded or discharged. It follows, from these views, that there was no sufficient evidence to warrant the commitment of the prisoner for trial in this district. He must, therefore, be discharged from custody under this warrant or order of commitment, and a proper order will be entered to that effect. After indictment the habeas corpus court will not examine into the guilt or innocence of the prisoner. People v. Rulloff, 18 How. Pr. (N. Y.) 93. |