Supreme Court of Judicature of New Jersey.
November Term, 1790.
[Different report of this case: Manum.Cas. 28]
On habeas corpus the court have no power to order a jury to determine the questions of fact that may arise: the court are the constitutional judges.
This was a Habeas Corpus to bring up the body of Negro Joe.
Leake, for Farlee, prayed a jury might be impannelled for the purpose of ascertaining the facts. He insisted that this being a claim of property, no man could, under the constitution and laws of the state, be ousted of his property, or dispossessed of his rights, unless by the intervention of a jury which was solemnly guaranteed to every individual, by the constitution and laws. Const. N. Jersey, Sec.22. He alleged that the court were vested with powers to order an issue, and to impannel a jury instanter for the purpose of determining it.[page 42]
We have no power in such a case to order a jury. This is not directly a case of property--it is one of personal liberty--it is a writ of right, intended for the protection of individuals against arbitrary or illegal detentions, and we are to decide upon it in our constitutional capacity, sitting here to superintend the liberty of the citizen, and to protect it from violation.
Craft, for the state, cited the cases of The State v. McKnight, in November Term, 1782, and The State v. Vanhorne, in May, 1785, in which BREARLY C. J. and the court had refused similar applications.