VOL. VIII. _ ------- - THE PEOPLE'S SOURNAL. Ito which is added a penalty for not I suppose it td be undoubted law ruzusnae Eveny TnuasnAy isoustau, a- f doing it, no discretion is to be used in that, in a case where a court acting .10DISOR AVERY. obeying the mandate. ' beyond its jurisdiction has committed The English statute confined the a person to prison, the prisoner, under Terms—let Advance: penalty to - a -neglect or refusal to our habeas corpus act, is entitled to. One copy per enema, $l.OO grant the writ in vacation time, and i his discharge, and that it makeS 'no Village subscribers, 125 from this a discreaionary power to" difference whether- the court thus 'FELON OF ADVF.RTISING. - R 1 ro refuse it in term time was iufered, transcending its jurisdiction assumes insertion, square, of 12 lines or less : l iertion • .. •• -) . o 3 i i ,„, 1 ;, ) „,, 1 1,u ut our act of assembly does not limit to act as a court of the Union or of every subsequent insertion, .25 the penalty to a refusal in vacation, the , Commonwealth. If a principle Rule and ti,trare work, per sq., :3 insertions, 3.0 but it its sufficiently comprehensive to apparently so just and clear, needs E ver y , e bAequent inserzion, .i"in ;;; . ). „ 0 embrace neglect ur refusal in vacation for its support adjudicated cases, ref. I c oalum, one year, I admit, six mon Its, 35mti iirin term :truo• - merle° cats be had to Wise a, t. With- Actainigralone or Executors' Notices, 2.t11l t 1 have looked in 'fain through the l eras 3d Cranch, 3311 Ist Peter's Cen- Sheri.i's za.e4, per tram, 1.5 u numerous calico reported in this State denied Reports, 552; hose agt. Hine- Profe4iion it Cards not exceeding eight lines • to find that the writ was ever 'denied ly,• 4th Crunch, 211, i. 2.68; Don agt,, imer.ed for *l - ',llO per annum. due I ~ ,-e .MI le:ters on haintoiA, to secure at to one wh,4e application was in due Harden, Ist Paine Reports, 55, 58 tentian, sttoabt be uddressed (post- paid) to finm, and whose case was in the pur- , and 59; 3d Cranch, 445; 43ollman the Publisher. i view of the act of Assembly. - I agt. Swattout, 4th Crunch, 75; Keay -- uey'a case, 7th Wheaton, 38, Kemp From the Phil. Penniy!vauian. agt. Kennedy, Ist Peter's C: C. R., 36; OPINION OF JUDGE 3013 X \Vicks agt. Caulk, 5 liar. and J., 42; , La the ratter cf the Petition of Passmore Wii- Griffith agt. Frazier, 8 Crunch, 9; harasan for a Writ of Habeas corpus. Corn. agt. Smith; Sup. Ct. Penn., Ist i Wharton Digest, 3i2.1; Com. ex rela tiame Lockington agt. the Jailer, &e., ; Sup. Ct.-manuscript, 1814, Whattiac Digest, vol. Ist, 321 ; Alhec ag! Ward, i 8 Mass., 86. Jenne Ksox.—l do not concur in the opinion of toe majority of this Court, refusing the writ of habeas cur is, an d 611311 state the reasons why, in my judgrneat, the writ should be granted. Thhr application was made to the emelt Whilst holding a strecial session at Bedford, oil the 12th of August, and upon an intimatien from the coun sel that in case the court had any dif ficulty upon the question of awarding the wt it, they would like to be heard. Thursday, the 16th of August, was fixed for the hearing. Oo that day an ingumeut was made, by Messrs. Merithth and Gilpin, in favor of the allowance of the Writ. I may as well remark here, that upon the presentation of the petition I was iii favor of awarding the habeas corpus, greatly preferring that the right of the petiti - oner to his discharge should be determined on the return of the writ. If this course had . been adopted, we should have had the views of counsel in opposition to the dis charge, and moreover, it necessary, we could, after the return, have ex endued into the facts of the case. I am in favor of grautire n . , , this writ, first, In.cause I believe the petitioner has the right to demand it at our hands. From the time,. of Magna Chartsthe writ of haleas corpus has been considered a writ ,d right, which every person is entitled to c.c nwito But the benefit of it (says Chan cellor Kent) was in a great degree eluded in England prior to the statute of Cildl lea 11., as the judges only awarded it iu term time. awl they as camera a discretionary power of au-aid ing oCrf . fic , ing it." 2 Kent Commen taries, ;:ti. And Bacon says, “Not withstauding the writ efhal:eas corpus be a writ of right, and what the sub ject is entitled to, yet the prevision of the law herein being in a great meas ure eluded by judges being only en abled to award it in term time, as also by au imagined notion qf the judaes that they had a discretionary power of granting or refusing it," the act of 31 Charlee 11., was made for reine,dy thereof. 1 am aware that, both in England and in this country, sines the passage of the statute of Charles 11., it has been held that whet e it clearly up pealed that the prisenei ; must be re manded, it was improper to grant the writ, hut 1 knew of 111 such construc tion upon our act of lfith February, 17 - j5. The people of these United States have ever regarded the lege of the habeas corpus as a most invaluable right, to secure which-an interdiction agamst its suspension. "unless when in cases Of rebellion or invasion the public safety way require it, ' is inserted in the organic law of the Unien; and, in addition to our act of 1755. which is broader and mor e Comprehensive than the English stat ute, a provision in terms like that in the Constitution of this State. /t is difficult to conceive how words could be more imperative in their character than those to be found in our statute Of 'trifi. The judges named are authorized and required, either in vacation or in term time, upon the due application of any person Curs mitted or detained for- any criminal or supposed criminal matter, except for treason or felony, or confined ur re strained of his or her liberty under Any color or pretense whatsoever, to award and grant a habeas corpus, di rected th the person or persons in whose custody the pi isoner is detained, returnable immediately. And the re fusal or neglect to grant the writ re quired by the act to be granted ren ders the judge so neglecting or refu • sing, liable to the penalty of three hundred pounds. I suppose no one will doubt the power of the legislature to require this writ to be issued by the judges of the Commonwealth. And it is tolera bly plain that where, in express words, a certain thing is directed to be done, THJ JOUR\ A p 10 In Kabul lies agt. Arnold, 3 Yates, 263, tho. writ IStaS refs-ed because thu priAmer was not restrained lih erty, and tllerefore, not. within the terms of the statute; and in ea. parte Lawrence, nth liinney, 301, it was held that the act of Assembly did not oblige the court to grant a habeas corpus where the case had already . been heard upon the -same evidence by another court. Without going into au examination of the numerous cases Where the writ has been allowed, believe it can be safely affirmed that the denial of the writ in a case like the precent is without a precedent, and contrary to the uniform practice attic! beach, and apinst the waiver: sal understanding of the profess'.6 and the people; but what' is worse still, it appears to me to be in direct violation of thi; law It may he said that the law never requires a useless thing' to be done: Grant it. But now can it be deter mined tulle useless until the. case is heard Whether there is groun Um the writ is to be determined Record ing to lacy, and the determination should follow, not precede the return. An application was made to the chief ju•qice of this court for a writ of habeas corpu previous to the applica tion now being considered. Tim writ was refused, and it was stated in the opinion that the counsel for the peti: limier waived the right to the writ, or did not desire it to he issued if the chieljustice should lie of the opinion that there was not sufficient cause 'for the prisoner's discharge. • But this can iu nowise prejudice the petitioner's right to the writ which he now demands. Even had the writ been awarded, .and the casts heard, and the discharge refused, it would not be within the decision in ex parts Lawrence, fur there the heating was beii.re the court in term time, - upon a tall examitettion of the case upon evi dence adduced, and not at chambers; but the more obvious distinction hare it,, that the writ has never -been awarded. And the agreement of coun sel that it should not be in . a certain event, even if l a iinding upon the client I there, would not affect him here. Now whilst I aver that the writ of habeas carpets, ad rid, jidendum, is a writ of ight,-1 do not wish to be un derstood that it should issue as a mat ter of course. rndoulttedly the peti tion must be in due form, and it roust shun,- upon its face that the petitioner is entitled to relief. It may be refused if. upon the application itself, it tip- . pears that, if admitted to be true, the applicant is not entitled to relief; but where, as in the case before • us, the petition alleges an illegal restraint of the prisoner's liberty, under an order from a judge beyou'd his juris diction, we are hound in the first place to take the allegation as true; and so taking it, a probable cause is made out, arid there is no longer a discretionary power to refuse the writ. Whether the allegation or want of jurisdiction is true or is not; is de terminable only upon the return of the writ. If one has averred in his petition what, if tine, would afford him relief; it is his constitutional right to be present when the truth of his allega tions is inquired into ; and it is also his undoubted right, under our habeas corpus act, to establish ids allegations by evidence, to be introduced and heard upon the return of the writ. To deny him the wi it, is virtually to condemn him unheard;. and I can see nothing in the.case which requires at our hands an extraordinary resistance against the prayer of the petitioner to be pUrmitted to show - thct his impris onment is illegal, that he is deprived of his liberty without due Course of law, 1 ant in favor of treating him as like cases have unifininly been treated in this 'commonwealth, by awarding the writ of habeas corpus, and re moving the inquiry as to his right to he discharged until the return of the writ; hut as a majority of . my breth ren have come to a different conclu sion, we.inust inquire next into the right 'of the applicant to bo discharged as the cue is crow preseuted, ISM DEVOTED TO THE-PRINCIPLES OF DEMOCRACY, AND THE IMSEMINATION - OF MORALITY, LITERATURE, AND NEWS COUDERSPORT, POTTER COUNTY, PA.; SEPTEMBER 20;1855. Some of these cases decide that the act of a court without jurisdiction, is void; some, that the proper remedy (hr an imprisonment by a_ court, with out jurisdiction is the writ of habeas" corpus; and others, that it may issue from a State court to discharge a pris oner committed under process from a federal court, if it clearly appears that the federal court had no jurisdiction of the ease; altogether, they establish the point that the petitioner is entitled to relief, it he is restrained of his liberty by a court acting beyond its jurisdic. tine. Neither do I conceive it to be cor rect to say that the applicant cannot now question the jurisdiction of the Judge of the -District Court, hecauSe be did n it challenge it upon thp hear ing. There are many rights and priv ileges wilich - a party to a judicial con troversy may lose if not claimed in due time, but nut so the question of juris diction; this cannot be given by ex press consent, much less will acquies cence-fir a time waive an objection -to it. (See U. S: Digest, vol. Ist, p. 639, PI. 62, and cases there cited.) It would be a harsh rule to apply to one who is in prison, "without bail or mainprize," that his omission to speak upon the first opportunity forever closed his mouth from deuying the power of the court to deprive him of his liberty. I deny th it the law is a trap for the -feet of the unwary.— Where personal liberty is concerned, it is a shield fol. the protection of the citizeu, .and it will answer his call even if made ; pri,on door has closed (din. If, then, the wait cif jurisdiction is fatal, and the inquiry as to its existence is still, open, the only question that , remains tube considered in this: Had the Judge of the District Court for the Eastern District of the United States pOwer to issue he writ of habeas corpus, directed to PasSmore William son, upon the petition of Toliti H. Wheeler. The power of that court to commit for a contempt is not de nied, and I understand it to be con ceded as a general rule by the peti tioner's counsel, -that one court will not reexamine a.commitment for con tempt by another court of. competent jurisdiction; but if the court has no authority to issue the writ, the de fendant was not bound to answer it, and his neglect, ur refusal to do co would not authorize his punishment for contempt. The first position which I shall take in considering the question of juris diction is ; that the courts of the Uni ted States have . no power to award the writ of habeas corpus, except such as is given to them by the acts of Con- • gt eAs. "Courts which originated in the Common law possess a jurisdiction which must be regulated by the com mon law; but the courts which ate cleated by written law, and whose ju risdiction is defined by written law, cannot transcend their jurisdiction.— The power to award the writ by any of the 'courts of the United States, must be gii-en by- written law." Ex parte, Swartwout, 4 Branch, 75. Ex parte, Barre, 2 Howat d, 65. The power of the courts of the United States- to issue writs -of habeas corpus is derived eithet from the 14th section of the Act of*March 3d. 1833. The section from the act of 1789 provides, that "all the cOurts oftheU. S. may issue writs of seirefizcids, habeas corpus, and all other writs not specially provided Ibr by statute, which may be necessary fit the exercise of their re spective jurisdictions, and agreeable to the principles and usages of law. Arid either of the justices of the Su premo Court, as-well as the Judaes of the District Courts, may grant writs of habeas corpus, fur the purpose of in quiring. into the cause of commitment; but writs of corpus shall in -no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary ba be brought - into court to testify." The 7th section of the act of 2d March, 1533, authorizes "either of ) the Justices Of the Supreme Court, or a of any District Court of the United States" in addition to the authority already conferred by law, to grant writs of Weirs corpus in all cases of a prisoner or prisoners in jail or confine meat, where ho or they shall be Com mitted or confined cm or by authority ()flaw for, any act done or omitted to be done in pursuance of a law of the Unitiid States; or any order, process ur decree of any Judge or Court there of; anything in any act of Congress I to the contrary notwithstanding." Mow, unless the writ algebras (-or pus issued by the Juke of the Dis trict Court was necessary for the ex- cise of the juaisdiction . of the said court, or was to inquire into a commit ment under, or.by color of the author ity of the United States, or to relieve---1 some one inarnisoned for an act dune, or omitted to be dune, in pursuance ofj a law of the United States, the trict Coutt had no power to issue it,' and a commitment fur contempt in refusing to answer it is an illegal im prisonment, which, und.2r our habeas corpus act, we are imperatively re- .; quired to set aside. It cannot be pretended 'that the writ was either asked for or granted to inquire into any commitment made under or by color of the authority of the United Stites, or -to relieve from imprisoutucnt for an act done or omitted to be done in pursuance of a. I law of the United states, and, there fore, we may to confine our inquiry solely to the question whether it was necessarv , for the exerci:e of ally jur isdiction- given to the District Court of the United States for the Eastern District of Pennsylvania. • . This blind us to the que , ,tion 'of the jurisdiction of the courts of the United - .States, and - more particularly I that oftho District Courts.. And here, without deL-iring or intendinr , ° to dis- , cuss at large the nature and powers of the federal .r.wernment, it is proper to repeat what has heed so often,said, and what has never been denied, that it is a government of enumerated pow ers• delvg tied to it by the sever al states, or the people thereof,- without capacity to enlarge or extend the pow : Ors so delegated and enumerated, and that its courts of justice are courts of limited julisdiciion, deriving their authority from the constitution of the Uoited.States, and the acts ofCengress under the constitution. Let us see what jddicial power was given by the people to th, federal government, .for that alone can ba rightly exercised by its cunt "Toe judicial power" (says the sec ond section of the third article) . ‘,-.;11; 1 extend to all cases in law and equity arising under this constitution, the laws ofthe United Stales, and treaties made or which shall he mole under their authority to all cases affecting ambassadors, other public ministers , and consuls, to all cases of admiralty and maritimejurisdiction, to contro, versus to which the United St. - shall be a party, to convoyersi be tween - two or more states, tween a state and a citizen of another state; between citizens of different states, between citizens of the seine stite Claiming lauds under grantsof different states, and betweeu a or state the citizens thereof and foreign states, citizens or subjects." _ • The amendments subsequenily made to this article have no bearing upon the question under consideration, nor is it necessaiy.to examine the various acts of eongressconfe,rritez. jurisdiction upon the Courts of the United States, for an act of Congress can be found exteudingthe jurisdictiuu beyond what is given by the Constitution, so far as relates to. the question we ate now considering. And if such an act should be passed it would be in direct ' conflict with the 10th amended article of the constitution, which declares that "the powers are not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the state respectively or to the people." If this case can bo brought within the judicial power of the c iurts of the United States, it must be either : lbt. Because it arises under the con stitution or the laws of the United States. Or, 2d. Because it it a controversy between citizens of diffelent states, for it is very plain .that . there is no ether clause in the constitution- which, by the most latitudinarian construc tion, could be made to include it. Did it arise under the constitution or the laws of the United . States I In °Her to give a satisfactory answer to this question, it is necessary to see what the case was. If we confine ourselves strictly to the record from the District Court, we learn from it that on the 18th - day of July last, John H. Wheeler re= seated his petition to John K. Hon. K. Kane, Judge of the District Court for the Eastern District of Pennsyl vania, setting forth that ho was the owner of three persons held to service or labor by the laws of the state of Virginia, said persons beingrespective ly named Jane, aged about thirty-five years ; Daniel, aged about twelve years, and Isaiah, aged about seven years; persons of color; and that they wore detained from his possession by Passmoro WilliaMson, but not for any criminal or supposed criminal matter. In - accordance with the prayer of the petition, a writ of habeas corpus was awarded, co nmanding Passmore William ion to bring the said bodies of the said Jane, Da riel and Isaiah, bef ire th.! Judge cif the District Court fbrth with. To this writ Passmore William son made a return, verified by his affimation,' that the said Jane, Daniel and, Isaiah, nor - either of them, were at the time of the issuing of the writ, nor at the time of the return, nor at any other time in the custody, power or p msession of, nor confined nor restrained their liberty by him ; and that, therefore, he could nut pro duce the bodies as be was commanded. - Tnis.retnrn was made on the 20th • day of July, A. D. 1855. "Where -1 upon, afterwards, to wit : on the 27th day of July A. D. 1855. (days the rec ord.) the counsel for the several parties having been beard, and the said return having been duly considered it is ordered and adjudged by the court, that the said Passmore Williamson be committed to the custody of the mar shal, without bail or mninprize, as f)r a contempt in refusing to make return to the writ of habeas corpus, horeto fore issued against him, at the instance of Mr:•John.H. Wheeler." Such is the record. Now, whilst I am willing to admit that the want of jutisdiction should- be made clear, I dune that in:a ca..ie. tuuhr our habeas corpus act the patty averrin g want of jurisdiction c-amot b.:llind the rec ord to establish its - non-eicistence. Ja risdiction, or the absence thereof, is a mixed que,tion of law and fact. It is the province of fact to ascertain what the case is, and of 'a v to determine Whether the jutisdiction at aches to the case so ascertained. And says thc... 3d section of our act of 'S3, "and that the said judge or justice may, accord ‘ing to the intent and meaning of this act,be enabled, by investigating the circum,tances of the case, to 'deter mine. whether, according to law, the said prisoner ought to be bailed, de manded or discharged, the return may, before or after it is filed, by lea , ;-e of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be I.ascortained." This provision applies . to cases of commitment or detainer of any crimi nal or supposed criminal matter, but the 14th section, which applies to eases of restraint of liberty "under any color or pretenca whatsoever," pro .vides that "the court, judge or justice before wh.)m the party so confined or -restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore Fescribed, to examine into the fact relating to the ease. and into the causeasuch confine- went or restraint, and thereupon either remand or discharge the party so brought, as to justice shall appet t;411." Tito right and duty of the supreme Court of a state to protect a citizen thereof from imprisninnent br a Judge of a United States Court having no jurisdiction over the ca useofcomplaint, is so manifest, so essentially necessary, - under our dual system of government, that I cannot believe that this right Will ever be abandoned or the duty avoided; but, if we concede what ap pears to be the law of the latter cases in the federal courts, that the jurisdic 7 tion need not appear affirmatively, and add to it that the want. of jurisdic tion shall nut be proved by evidence outside of the record, we do virtually deny to the people of the state the right to question the-validity of an or der by a federal judge consigntig them to the walls of a prison "without bail or mainprize." What .a mockery to say to one re strained' of his liberty, "True, if the Judge or Court under- whose order you are in prison, acted without juris diction, you are entitled to be ••. charged, but the burthen is up. you . to show that there was no juris iction, and in showing this we will not per mit you to go beyond the record made up by the party against whom you 1. complain." As the petitioner would be legally entitled, upon the return of the writ, to establish the truth .of the ficts set forth in his petition, so far as they beat' upon the question'of jurisdiction, we are bound, before the return, to assume that the facts are true as stated, and taking then', tho case is this John H. Wheeler voluntarily brought into the state of Pennsylvania three colored persons, held - by him, in the state-of Virginia, as slaves, with the intention of passing , through this state. Whilst on board of a ateanaboit, near Walnut street wharf, in the city of Philadelphia, the petitioner, Passmo7o Williamson, inthrined the mother that she was free by the lairs of Pennsyl vania, who, in the language oftbe peti Lion; "expressed her desire to have her freedom, and filially, with her child/ilt, loft tho bud." of her own tree will and accord, and without coercion or compulsion of any kind, and having_ seen her in 'possession of her liberty with her children,\ your petitioner (says the petition) returned to his place of business; and has never.siuco seen the said Jane, Daniel and Isaiah,. or either of them, nor dues ho know whore they are nor has, he had_ any connection of any kind with- the sub ject." ale owning slaves in a 'slave gate voluntarily brings . them int* a free state with the .intention -of passing through the free state. Whilst there. upon being told that they are free, the slaves leave their masters. Can a Judge of the District Court of the United States compel their restoration through the medium of a writ of ha beas. corpus directed to the person by whom they were informed of their freedom I Or, in other words, is it a case arising under the constitution acid laws of the United States'? What article or section of thelCon. stitution has any bearing . upon tho right of a master to pass through a free state with his slave or slaves 1 Or when has Congress over attempted to legislate on Luis - question I I most u-Thesitatingly aver that neither in the Constitution of the United States nor in the acts of Congress can there ba found a sentence which has any effect upon this question whatever.. it is a question to be decided by the laW of tne state where the person i 3 for the time being-, and that law must be de tertuin-d by the judges of the state, woo ilase sworn to support the Con stitution of the state as well as that of the United States—an oath which is never taken by a federal judge. Upon this question of jurisdiction it is wholly irnmeterial whether by the law of Pennsylvania a slaveholder has or has not the right ofpassing through our state with his slaves. 11 he. has right, it is not in virtue ofthe con stitution or laws of the United States, but by law of the state, and if no such right exists, it is because the state law has forbidden it, or has failed to recog nize it. It .is for the state alone to legislate upon this subject, and there is no power on earth to call her to an account for her acts of omission of \ commission in this behalf. If this case could, by any reasonable • construction, be brought within the terms of the third clause of the second section of Article Four of the Consti tution of the United States jurisdiction might be claimed for the• Federal Courts, as then it would be a case arising under the Constitution - of the (Jolted States although I believe the writ of habeas corpus is no part of ma chinery designed by Congress for the rendition of fugitives from labor. "No person (says the clause above mentioned) held to service or labor in one state, under the laivs thereof, escaping into another, ! hall, in cam. quence .or any law or regulation there in, be discharged from such service or labor, but shall . be delivered up oa claim of the party.to whom wilt_ ser vice or labor may be due." By refference to the debates in the Convention, it will be seen that this clause was inserted at the request of delegates from southern states, and upon the declaration that in the absence• of a constitutional provision, the right of reclamation would not exist, unless given by state authority: If it had beeu intended to cover the right of transit, words would have been used' evidencing such intention. Happily there is nu cuntrairiety in the con struction which has been placed upon this clause in the Constitution. No Judge has ever so manifestly disre garded its plain - and unequivocal language as to hold that it applies to a slave voluntarily brought into a state by his master. Upon the . CCM.. trary, there is abundant authority that such a case is not within either the letter or the spirit of the constitutional provision for rendition of fugitives from labor. Said Mr. justice Wash. ington in ex pa.rte Simmons; 6 W. Q. R. Reports, 396 : tar Sea 4th, page. El NO. 18.
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