Opinion
Spring Sessions, 1849.
HABEAS CORPUS.
Layton, for prisoner.
The sheriff returned that he had the complainant in custody, under a warrant of commitment from Justice Windsor, directed to S. A. Polk, constable, to the sheriff or jailer, and reciting that "whereas Robert Sipple, free negro, has this day been brought before the subscriber, one of the justices of the peace for said county, by virtue of a warrant by me issued on the 15th of September, 1849, to answer to the charge of not leaving the State of Delaware, in compliance of a notice by me issued on the 17th day of August, 1849, directed to constable S. A. Polk, who returned the same, personally notified on the 22d day of August, 1849," and being adjudged to pay a fine of thirty dollars to C. F. Rust, being the informant, and also the costs of the process: these are therefore to command you the said constable forthwith to convey and deliver in the custody of the said sheriff or keeper of the said jail, the body of Robert Sipple, free negro; and you the said sheriff or keeper of said jail are hereby required to receive the said Robert Sipple, jr., free negro, into your custody in the said jail, and him there safely to keep until he be thence delivered according to due course of law." Given under my hand and seal, c., c.
To this return it was excepted — 1. That the commitment did not set forth the cause of the defendant's arrest or commitment. 2. That it set out no crime, or offence, or charge cognizable before a justice of the peace. 3. That the fine imposed by the justice was illegal.
Layton. — The commitment alledges no offence. The complainant is not committed on any charge; nor to answer; but simply because he would not leave the State, on the order of the justice of the peace; who, for all that appears on the record, had no right to make such order.
By the Court. — We can only conjecture that this was a proceeding before the justice against the defendant, as a non-resident free negro, under the act of 1841, Digest 410. This does not appear on the commitment, nor any authority of the justice to notify or order the defendant to leave the State; nor is any other offence charged — and this being a special power in the justice, and a penal law, it must appear by the commitment, under what law, and by what authority, and for what cause, the defendant was committed. For the want of this, he is discharged from custody.