In the matter of R. T. Bates and others. The return of the marshal of the United States for this district to the writ of habeas corpus, ordered to issue in this case, sets forth that the petitioners in whose behalf the writ has been issued, were taken, and are detained in custody by him as marshal, in the jail of Charleston district, for further examination on a charge of piracy, in violation of the 4th and 5th sections of the act of congress approved May 15, 1820, [3 Stat. 600, c. 113,] by virtue of warrants and commitments issued on 28th August, 1858, under the hand and seal of Robert O. Gilchrist, a commissioner of the United States for the district of South Carolina. The return then sets forth the warrant, which is directed to the marshal, requiring him to convey and deliver into custody of the keeper of the jail the bodies of said parties, charged before the commissioner on the oath of Lieut. Joseph M. Bradford, U. S. navy, with being of the crew or ship’s company of the brig Echo, engaged in the slave trade, in violation of the act of 1820, [3 Stat. 600,] c. 113, §§ 4, 5. And the keeper of the jail is directed to receive the said parties into his custody in the jail, and them there safely keep for further examination. A motion is now made to discharge these prisoners; and the various grounds upon which this motion was urged, may be considered under two general propositions: 1. That the proceedings on the part of the commissioner were irregular and insufficient to justify a. commitment. 2. That the commitment is, in itself, improper and illegal. These proceedings, it appears, were on affidavit of Joseph M. Bradford, a lieutenant in the U. S. navy, which states that on the - day of August, 1858, the U. S. brig Dolphin took possession of the brig Echo; that on examination she proved to be a slaver, with a cargo of three hundred and twenty negro slaves on board, a crew of Spaniards and Americans, who gave their names, which are the same as are signed to this petition; and that he, with certain persons named, are material witnesses. The warrant which issued upon this affidavit, commanded the marshal to apprehend the said prisoners, and to bring them before the commissioner, to be dealt with and disposed of according to law. No return is endorsed on this warrant. Its execution appears only in the commitment already referred to and set forth in the return.
In countries which regard the personal liberty of the citizen, wherever laws have been passed for the suppression of crime and the punishment of offenders, it has been found necessary to provide certain preliminaries, operating as safeguards, which must precede either the arrest or the commitment or both. In the constitution of the United States it is thus provided: that no warrant shall issue but upon probable cause, supported by oath or. affirmation, and particularly describing the place to be searched and the person or thing to be seized, (article 4, Amend. Const.;) and at other stages of the investigation, additional provisions have been made, intended to make the liberty of the citizen secure from unreasonable violation. In Ex parte Bollman, [Case No. 14,622,] it is said, “The cause of issuing a warrant is a crime committed by the person charged. Probable cause, therefore, is a probability that the crime has been committed by that person. Of this probability, the court or magistrate issuing the warrant must be satisfied by facts, supported by oaths or affirmation.” The subject matter of the crime alleged in these proceedings is the prosecution of the slave trade. Is there probable cause to believe that the crime has been committed by the persons charged? They are found in a vessel, composing the crew or ship’s company, with three hundred Africans on board. This is not conclusive; but at this stage of the criminal procedure, it is not expected to be conclusive. If a prima facie case is made out, it is sufficient. 1 Chit Crim. Law, 106. The commissioner is to be satisfied of this probable cause before he issues the warrant, and it must be supported by oath or affirmation. In U. S. v. Johns, [Case No. 15.481,] it is laid down that upon a habeas corpus the only enquiry is whether the warrant of commitment states a sufficient probable cause to believe that the person charged has committed the offence. And in this state the law is thus stated by Judge Earle: “It is a great mistake to suppose that a warrant for apprehension, or a warrant of commitment, need contain any statement at all of the evidence on which it is founded, or need enumerate any of the facts and circumstances accompanying the offence.” Dud. 300.
It is at the next stage of the proceedings that the objections have been most strongly urged. And the consideration of these objections is not only affected with the responsibility of deciding any question in a case of so much interest and importance; but it is moreover important as involving the direction of the criminal procedure of this court. It is objected that these parties have never been brought before the commissioner, nor examined, nor have the witnesses against them been examined in their presence, nor
Previous to the act of assembly of the state of South Carolina, in 1839, the statute of 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, were among the English statutes retained in force after the Revolution; and their provisions governed the proceedings in criminal cases. By these statutes, when a party accused was admitted to bail, or committed, the parties before whom he was brought, previous to a commitment, were commanded to take his examination and information of those that bring him, of the fact and circumstance, and the same, or so much thereof as shall be material to prove the felony, shall be put in writing within two days after the said examination, and the justices shall certify the same. 1 Chit. Crim. Law. 74. It is true that it has been said, under this act, the accused may decline to testify; but it is also said that, in cases of felony, the examination of the accused must be taken.
The counsel for the accused truly stated the point in this matter when they addressed themselves to the question whether the act of 1839 was a repeal of the statutes of Philip & Mary, and insisted that this act was the repeal of those statutes only so far as the examination of the accused was concerned, but
The statutes of Philip & Mary are manda-tors'; they command the justice, “before he (or they) shall commit,” “shall take examination of each prisoner and information of those that bring him.” The act of 1839 directs that the warrant so issued, as already described, “shall authorize the arrest and detention of any person so charged,” and that the magistrate before whom the prisoner is produced for commitment shall not hold it necessary to examine “such prisoner and those that bring him, as heretofore prescribea by law.” It is true in the 10th section it is said, “The magistrate may take the examination of any witness in behalf of the state,” and it has been argued with great zeal that “may,” in this section, should be read as if written “must” or “shall.” This is the rule where a statute directs the doing of a thing for the sake of justice; the word “may,” in such cases, means the same thing as “shall.” Dwar. St. 712. But the principle of the rule so stated has no application here. Por what was formerly prescribed by law, that w'hich, as has been seen, in the statute of Philip & Mary, it was said that the magistrate “shall” do, is the same thing which the act of 1839 declares it shall not be necessary for him to do. And the authority given in the latter part of the section, that the magistrate may take the examination of any witness in behalf of the state, provided it is done in the presence of a prisoner, is neither the re-enactment of the positive command of the statutes of Philip & Mary to take that examination, nor a qualification of the positive declaration in the first paragraph that such an examination, although formerly necessary, shall no longer be so. How far that examination of the witnesses permitted by the act of 1839 can make the deposition, so taken, competent evidence at the trial of the accused, I will not now discuss farther than to say that to be confronted with the witness at the trial of the case seems to me the constitutional right of the accused. 3 Story, Comm. § 1785. I have to regret that no adjudged case in the courts of this state has settled the construction of this section of the act of 1839. Had there been any such case it would have been our duty to have adopted its construction, and so to enforce it, unless there shall be special legislation by congress. In the absence of any construction by the courts of the state, I have been obliged to give it that construction w'hich, to me, seemed not only proper, but in fact the only construction which could be given to it consistently with the admonition that judges “ought not to make any construction against the express letter of the statute, for nothing can so express the meaning of the makers of the act as their own direct words.” Dwar. St. 725; 5 Repi 118. And I feel more confidence in the opinion that the 4th and 5th sections of the act of 1839 repeal the statutes of Philip & Mary, and furnish a rule of procedure in themselves in all criminal proceedings, from the fact that such was the received opinion while I was at the bar; nor do I know of any case in the courts of the state where the practice did not conform to the construction which I have given. If this construction were exposed justly to the objection that by it the accused was not confronted wdth the witnesses against him, and had not the assistance of counsel for his defence, it would be inconsistent with the guaranty of the constitution in these particulars; and the provision, therefore, if rightly construed, w'ould be void, because it would tend to impair a constitutional right. But it should be remembered, in the language of Judge Marshall, that, “before the accused is put upon his trial, all the proceedings are ex parte.” [Ex parte Bollman,] 4 Cranch, [8 U. S.] 129. That these constitutional rights, which are supposed to be invaded by this construction, are rights which are not contemplated by the constitution in connection with preliminary proceedings; that the privilege of confronting the witness is a privilege which pertains to the trial in court; that it does not extend to all periods in the proceeding, is manifest in the fact that it cannot be claimed before the grand jury: a period, when, if allowed, it would be far more available for the accused than in the preliminary proceedings before the magistrate. And that the right to have the assistance of counsel is not invaded, since, if the statutes of Philip & Mary were in force, it is beyond dispute that, in proceedings under them, the accused was not entitled to the benefit of counsel as a matter of right. 3 Story, Comm. §§ 1785, 1786;
But it is said the commitment or detention for further examination is improper. Is it unlawful ? The 4th section of the act of 1839 directs the accused to be arrested and brought before the magistrate, to be dealt with as the law directs. And in this case, the detention of the accused has been ordered for further examination. Now, it will be observed that the act of 1839 does not forbid any examination; it only provides that it shall not be necessary before commitment. There may be, as in this case, a number of persons accused; it may become a matter of duty for the magistrate to examine, and ascertain whether they are all equally guilty, and whether they shall all be committed for the same offense. Nor can I understand why, in this case, the accused complain of a commitment for further examination. If the .warrant contains probable cause for commitment, and rests upon an oath for its support, the magistrate may commit for trial, or for further examination. But the commitment for further examination is not regarded as a proceeding of which the accused can complain, unless it is abused. “If (says Lord Eldon, in the house of lords) I understand the law upon the subject, a commitment for further examination is not a proceeding against the party, but a proceeding for his benefit. It is a proceeding with a view to protect him against a commitment for trial, if * * * it can be found that there is no ground upon which there ought to be a commitment for custody in order to trial.” 3 Dow, 184. And where it appears that a party is detained, even without a warrant, for further examination, Abbott, C. J., expressed a doubt whether habeas corpus would be issued where the accused was held for further examination, and refused a discharge. Ex parte Krans, 8 E. C. L. 110. It was said in the argument that this detention was in jail. But it was overlooked that a detention elsewhere than in jail would not be lawful; for thereby the accused might be deprived of the benefit of the jail delivery.
It is true that the offense charged in the warrant is a felony, and is therefore excepted specially in 31 Car. II., c. 2; but in such case the common law gave relief. And in the constitution of the United States, the provision is broadly declared, “that the privilege of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it.” Article 1, § 9. Por whatever cause he may be imprisoned, one who is entitled to the writ may obtain it. But its end is not to assert an exemption from all imprisonment, which would be inconsistent with every idea of law and political society, (3 Bl. Comm. 132, Wendell,)’ but to relieve from “a confinement without lawful warrant, without legal cause, on vague, indefinite and uncertain charges,” (Dud. 299.) If anything had been wanting in this case to secure for it my careful consideration, it would have ueen found in the zeal with which the motion for the discharge of the prisoners was urged. I do not see any ground upon which I could rest that exercise of the power with which I am vested. The motion, therefore, is refused.