9 Port. 383 | Ala. | 1839
A preliminary question has been raised by the Attorney General, which must be disposed of, before we consider the merits of the application of the petitioners. It is this: Has this court the constitutional right to award a writ of habeas corpus on the case, as disclosed by the record ?
By the second section of the fifth article of the constitution of Alabama, it is declared, that “ the Supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law : Provided, that the Supreme court shall have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may be necessary to give it a general superintendence and control of inferior jurisdictions.”
The exception introduced into the first part of this section, was not intended to apply to any particular provision of the constitution, but was inserted ex majore cau-tela, so as to place beyond doubt, the operation of every part of that instrument, with which the restrictive terms of the section come in conflict. In this view, it was unnecessary, for if the “ Supreme court ” was vested with jurisdiction other than appellate, in any part of the constitution, its exercise would not be considered as inhibited by the limitation imposed in the section before us. The
Had it been intended that the exception should refer particularly to the proviso, it would have been quite easy to have employed terms, thus directing its application— instead of saying, “ except in cases otherwise directed by this constitution,” the convention might have said, except in the cases excepted by the proviso to this section, or they might have used other language, so precise as not to have left their meaning to be ascertained by the uncertain rules of construction.
Let us, however, suppose for a moment, that the exception points directly to the proviso, and still it would be inoperative. There is no place we could assign to it there, that will enlarge the meaning of the section: if “except” were substituted for “provided,” there would be a mere variation of phraseology, without a change of the sense. But it is insisted, that the exception may apply to the “power to issue writs of injunction, mandamus, quo warranto, habeas corpus;” that the “ other remedial and original writs,” not specifically defined, are to be controlled as to the purpose for which they are used by the latter part of the proviso. This argument cannot
This court, then, does not possess the constitutional power to award the writ, which the petitioners have asked for, unless it be “ to give it a general superintendence and control of inferior jurisdictions.” To bring a case within these qualifying terms, it should be shown, either that some court, or that some judge of a court, invested with authority to act in the premises, has under
It was argued for the petitioners, that the judge had no discretion; that it was his duty to have allowed the petitioners to have been tried, or bailed. We think this argument cannot be maintained. It is clearly competent for .the Legislature to compel a judge to forego the exercise of delicacy in such a case, and declare it his duty to sit at the trial of the man who has even killed his brother ; but a statute, to have this effect, must be so express and unequivocal, as to take away all ground for construction. A juror, related as the judge seems to have been to the deceased, would doubtless have been an incompetent trior, and shall not a judge, who may exert a greater influence upon the fate of the accused, be allowed to challenge himself, for a cause which disqualifies a juror? The question, in our opinion, furnishes its own answer.
The same cause which authorised the judge to decline the trial of the petitioners, also excused him from passing upon their application for bail. There, an exercise of judgment was necessary to determine the sums in which bail should be respectively required of the petitioners, and the sufficiency of the securities offered.
This not being the true state of the case, but the petitioners’ application not having been decided upon by a judge, or a court of primary jurisdiction, or a decision refused under circumstances affording no just cause for the refusal, the prayer of the petition must be denied.