In the Matter of Keeler.
but it is to be observed that the writ of habeas corpus does not issue as a matter of course on application, although it is frequently called a writ of right, and is so in the enlarged sense of that term. But where the defect or illegality complained of does not appear, an affidavit should be made stating the circumstances under which the person imprisoned or detained is entitled to the benefit of the writ. 1 Chitty, C.L. 124; Hand, Prac. 519; Ex parte Bruce, 8 East, 27; Hottentot Venus, 13 East, 195. In the English courts affidavits have been uniformly required, as an examination of the cases will show. And it may not be improper to remark, that as interferences with the military authority for any cause whatever are regarded with jealousy, a strong case ought to be made out, before a court or judge of the United States would send the writ to a military officer. Reasonable grounds must exist for awarding the writ, because if it should issue upon a mere unsupported application, a felon, under sentence of death, or undergoing imprisonment in a prison, or a person confined for insanity, or other prudential reasons, might obtain a temporary enlargement, although certain to be remanded. And therefore, Sir Edward Coke, when chief justice, did not scruple to deny a habeas corpus to one confined by the court of admiralty for piracy, there appearing on his own showing, sufficient grounds to confine him. 3 Bulstrode, 27; 2 Roll. Rep. 13R; 3 Bl. Com. 132. And so the court of King's Bench in the case of Schiever, 2 Burr. 766, denied the writ, saying, that upon his own showing he was clearly a prisoner of war and lawfully detained as such. It must sufficiently appear that the party is imprisoned or detained against his will, without authority of law, and is consequently entitled to be relieved by the efficacy of this writ. It is the imperative duty of every district judge of the United States, when a proper case is presented either in court or at chambers, to promptly interfere in behalf of the injured party, and for one it will always be my pleasure to do so, because by the constitution itself it is plainly enjoined upon every officer of the government, civil and military, judicial, executive, and legislative, to guard and protect the personal liberty of the citizen, and not sanction any invasion of it without due process of law.
