of OJIUR PES AM, INVARIABLY IN ADVANCE.
TOWA N J>A:
SauuSnii Slanting, D.pUrabci 2D, 1535.
Opinion of Judge Knox.
in the matter of the Petition of Passmore Wil
liamson for a Writ of Habeas Corpus.
k X(IX , J.—l do not concur in the opinion of
i.uijuVity of this court, refusing the writ of
" \ ' v, and .shall state the reasons why,
. . tv judgment, the writ should he granted.
Tiiis implication was made to the court whilst
1 iwlia ' a -nccial session at Bedford, on tiie
],>.], 0 ;- August, and upon an intimation from
:!iecounsel that in ease the court had any dif
lieulty upon the question of awarding the writ, i
,v■would hke to be heard, Thursday, the
lilth of A artist, was lixed for the hearing. On !
that day an argument was made, lv Messrs.
v r,.[iiii and G iipin, in favor of the allowance j
I ma v as well remark here, that upon the J
presentation of the petition 1 was in favor of
awartlinir the habeas corpus, greatly preferring j
that the right of the petitioner to his discharge j
should he 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 j
discharge, and, moreover, if necessary, we
could, idler the return, have examined into the
facts of case.
[ am in favor of granting this writ, first, bu
c.■ I'' iieve the p lit loner has the right to ,
: :r,;tnd it at our hands. From the time of
Miitrtia Charta the writ of halms corpus has
ic. a considered a writ of right, which every
I , r.-oii is entitled to c.t merilu juslicii.
•• i hit th. benefit of it (-ays Chancellor Kent)
in a great degree eluded in England prior 1
; ;ho staiiitc of Charles 11., as the Judges j
III!V own: led it in term time, and they assmii-1
. discretionary power of awarding or refits-'
2 Kent Commentaries, 2d. And ha-1
, is '.y -. " Motw ithstundiug the writ of hibi s ■
, pits be a writ <d' right, and what thesaojeet i
- entitled to, yet the provision of the law here-!
in being in a great measure eluded by the
•Judges being only enabled to award it in term j
j lime, as also Iy an imagined ut lion of the Judges j
halt they had a discretionary power of grant- j
ii.g or refu-i: g it," the act of 81, Charles 11.,
j made for remedy thereof.
| lam aware that, both in England and in
-i s country, mice the passage of the statute
iirles 11., it lias been held that where it
<i -sly appeared that the prisoner must be re
• <;ed. it was improper to grant the writ,but
I know of no such construction upon our act
| <>:'htli February, 1785. The people of these
Visited Stales have ever regarded the privilege
vf tlm // 1 let is rpn-s as a most invaluable right,
; -.cure which an interdiction against its sus
iK'ii-ion, "unless when in eases of rebellion or
diva-'ioTi tlie public safety mav iviuire it, 1 ' is
inserted in ti:-' organic law of the Union : and.
in addition to our act of 1785, which is i ro.id
•r ;uul more comprehensive ll.au the English
tatnte, a pro\ oa in <
'! titution of th i si .i ■ ■ ' i ' mnd
the Constitution of this Sate.
Ji is diifieult to conceive how words could be
:>re imperative in their character than those
■ lu< found in our statute of' -5. Tin- judge-:
Id are authorized and required, cither in
tion or in term tim A , upon the due appli
ed of any person committed or detained for
criminal or supposed criminal matter, ex
fur treason or felony, or confined or re
lied of his or her liberty under any color
reteiice whatsoever, to award and grant a
corpus, directed to the person or persons
hose cu tody the j rioner is detained, re
ahle iuiniediately. And tiie refusal or ne
' to grant the writ required by the act to
runted readers the judge so neglecting or
-in.', liable to the penalty of three hundred
ids.
snpjiose no one will doubt tlie power of
legislature to require this writ to be issued
he judges of the Commonwealth. And it,
nil !y plain that where, in express words,!
Haiti thing is directed to be done, to
h is ad 1 d a penalty for not doing it,
iscreliou is to be used in .obeying the niau
• Iv: gdislt statute confined the penalty to
-h'< t or rTusal to grant the writ in vaca
' I'm, and from this a discretionary power
' i-' it in term time was inferred, but our
i assembly does not limit the penalty to a
iin vacation, but it is sufficiently eoni
■ivc to i lubraee neglect or refusal in va
/;■ fr in term time.
u •! ■ lin vain through the numerous
- reporti d in tliis state to find that the
ev r denied to one whose application
1 'lii. form, and whose case was within
. : >\v the act of Assembly.
! h , ".b r .; .\ruold, 3 Yates,2o3.the
■ - refused because the petitioner was not
railed of his liberty, and therefore, not
1 die terms of the statute ; and in ex parte
''di Finney, 304, it was held that
•\ - - ' iut !y did not ob lige the court to
a ' ' u.. corpus where the ease had al
•e:i i upon the same evidence by
ro >'tb Without going into an e.v.m
--\ : jhc numerous eases where the writ
"'Millowed, ( believe it can be safely
■ dn.t tlie denial of the writ in a ease
'" ! ,r ' -<"it is without a precedent, and
' • " tlie uniform practice of the bench,
"g M tlio universal understanding of the
1 ihe people ; but what is worse
~ to me to be in direct violation
■ A ssiil that the law never requires
_ ■■joiaig to be done. Grant it. But
_'t ue det.-rniined to be useless until
h ,h ' :lr d ! Whether there is ground
> . j' ,! | s to be d.'teriiiined according to
i . requires that the doteruiiua
. 1 i's.ow, not precede the return.
!''j m ' * '"-I was made to the ehiei' justice
ut ior a v. i.t of holers corpus previ-
now being considered.—
!4ie <(> uas 1 for the pi tit loner waiv-
Ed the right to the writ, or did not desire it to
be issued if the chief justice should be of tlie
opinion that there was not sufficient cause set
forth in the petition for the prisoner's dis
charge.
But this can in nowise prejudice the peti
tioner's right to the writ which lie now de
mands. Even had the writ been awarded,and
the ease heard, and the discharge refused, it
would not le within the decision in cx-purtc.
Lawrence, for there the hearing was before the
court in term time, upon a full examination of
the ease upon evidence adduced, and not ut
chambers ; but the more obvious distinction
here is, that the writ lias never been awarded.
And the agreement of counsel that it should
not be in a certain event, even if binding
upon the client there, would not affect liini
here.
Mow whilst I aver that the writ of holers
corpus, ad sub jieit'udum, is a writ of right, 1
do nut wish to be understood that it should
issue, as a matter of course. Undoubtedly the
petition must be in due form, and it must show
upoq its fac that the petitioner is entitled to
relief. Jt may bo refused if, upon the applica
tion itself, it appears that, if admitted to be
true, the applicant is not entitled to relief ; but
where, as in tlie ease before us, the petition
alleges an illegal restraint of the petitioner's
liberty, under an order from a judge beyond
bis jurisdiction, we are bound in the first place
to take the allegation as true ; and so taking
it, a probable cause is made out, and there is
no longer a discretionary power to refuse the
writ. \\ hetlier the allegation or want of ju
risdiction is true or is not, is determinable on
ly upon the return of the writ.
If one has averred in his petition what, if
true, would afford him relief, it is his constitu
tional right to be present when the truth of
his allegations is inquired into ; and it is also
his undoubted right, under our habeas corpus
act, to establish his allegations by evidence, to
be introduced and heard upon the return of
the writ. To deny him tlie writ is virtually to
condemn him unheard ; and as I can see noth
ing in the ease which requires at our hands an
extraordinary resistance against the prayer of
the petitioner to be permitted to show that his
imprisonment is illegal, that lie is deprived of
his liberty without due course of law, I am in
favor of treating him as like eases have uni
formly been treated in this commonwealth, by
awarding the writ of habeas corpus, and remov
ing the inquiry as to his right to be discharged
until the return of the writ ; but as a majori
ty of my brethren have come to a different con
clusion, we must inquire next into the right of
the applicant to be discharged as the ease is
now presented.
J suppose it to be undoubted law that, in a
ease where a court acting beyond its jurisdic
tion has committed a person to prison, the pri
soner, under our habeas corpus act, is entitled
to liis discharge, and that it makes no differ
ence windier the court thus transcending its
jurisdiction assumes to act as a court of the
Union or of the Commonwealth. If a princi
p. • apparently so just and clear, needs ior its
-up iort adjudicated eases, reference can lie had '
to \Yi erg'. Withers, 3d Crunch, 331 ; Ist!
Ceteris Condensed Reports, 552; Bo.sc agf. ■
llin ly, fill ('ranch, 24 i, 2<>B ; Dene#/. Har
den, I t Paine lb-ports, 55, 58 and 51); 3d
Craneh, 4 Roliman agf Swartout, 4th
('ranch, 75 • Kearney's ease, 7th Wheaton,
38 ; Kemp ag>. Kennedy, Ist Ceteris C. C. 11., i
3(1 ; Wiikes agf Caulk, 5 liar. & J., 42 ;
Griffith tgf Frazier, 8 ('ranch, ( J ; Coin, agf
Smith, Sup. Ct. Pena., Ist Wharton Digest,
321 ; Com. ex relatione Loekingtoii agf the
Jailor, Ac., Sup. Ct. manuscript, 1814, Whar
ton's Digest, vol. Ist, 321 ; Albec agf \Y ard,
8 Mass., Bf>.
Some of those eases decide that the act of a
court, without jurisdiction, is void ; some, that
the proper remedy for an imprisonment by a
court, having no jurisdiction is the writ of ha
beas corpus ; and others, that it may issue from
a state court to discharge a prisoner commit- j
ted under process from a federal court, if it j
clearly appears that the federal court had no
jurisdiction of the case ; altogether, they es
tablish the point that the petitioner is. entitled
to relief, if he is restrained of his liberty ly a
court acting beyond its jurisdiction.
Neither do 1 conceive it to lie correct to say
that the applicant cannot question tiie juris
diction of the Judge of the District Court, lie
cause he did not challenge it ujion the hearing.
There are many rights and privileges which a
party to a judicial controversy may lose if not
claimed in due time, but not ;o the question of
jurisdiction ; this cannot be given by express
consent, much less will acquiescence lor a time
waive an objection to it. (See U. S. Digest,
vol. Ist, p. (13!', CI. 52, and eases there cited.)
It would be a harsh rule to apply to one who
is in prison, " without bail or mainprise," that
bis omission to speak upon the first opportuni
ty forever closed his mouth from denying the
power of the court to deprive liini of his liber
ty. I deny that the law is a trap for the feet
of the unwary. Where personal liberty is con
cerned, it is a shield for tlie protection of the
citizen, and it will answer his call even if made
after tiie prison door lias closed upon him.
If, then, the want of jurisdiction is fatal,and
the inquiry as to its existence is still open, the
only question that remains to be considered is
this : Had the Judge of the District Court for
llie Eastern District of the United States pow
er to issue the writ of habeas corpus, directed
to CassinoiT Williamson, upon the petition of
John 11. W heeler. Tlie power of tluit court
to commit for a contempt is not denied, and I
uml< rstand it to be conceded as a general rule
by tlie petitioner's counsel, that one court will
not re-examine a commitment for contempt by
another court of competent jurisdiction ; but
if the court has no authority to issue the writ,
the defendant was not bound to answer it, and
his neglect or refusal to do so would not au
thorize his punishment for contempt.
The first position which 1 shall take in con
sidering tlie question of jurisdiction is, that the
courts of the United States have no power to
award tlie writ of habeas corpus except such
as is given to tin m ly the arts of Congress.
" Courts which originated in the common
law j•(issc:. ; .i jurisdiction which uiual be regu-
PUBLISHED EVERY SATURDAY AT TOWANDA, BRADFORD COUNTY, PA., BY E. (I'M KARA (JOODRICH.
" liEi'.'AlillLESS OF DENUNCIATION FROM ANY QUARTER."
lated by the common law ; but the courts which
are created by written law, and whose jurisdic
tion is defined ly written law,cannot transcend
their jurisdiction. The power to award tlie
writ by any of the courts of the United States,
must be given by written law." J'Jj parte ,
Swart wont, 4 Crunch, 75. Ex parte, Barre,
2 Howard, 05. Tim power of the courts of
the I mtcd States to'issue writs of habeas corpus
is derived either from tlie 14th section of the
Act of 24th Sept, 17:-'.'.), or from the 7th sec
tion of tlie Act of March 2d, 1833.
The section from the act of 178!) provides,
that " all tlie courts of the United States may
issue writs of scire facias, habe's carpus, and all
other writs not specially provided for by statute,
which may be necessary for the exercise of
their respective jurisdictions, and agreeable to
the principles and images of law. And either
of the Justices of the Supreme Court, as well
as the Judges <>l the District Courts, mavgrant
writs of hobcas carpus, for the purpose" of in
quiring into the cause of commitment ; but
writs of habeas corpus shall in no ease extend
to prisoners in jail, unless they arc in custody
under or by color of the authority of the Uni
ted States, or are committed for trial before
some court of the same, or are necessary to be
brought into court to testify."
The 71li section of the Act of 2d March,
1833, authorizes " either of the Justices of the
Supreme Court, or a Judge of any District
Court of the United States, in addition to the
authority already conferred by law, to grant
writs of Inlets corpus In all eases of u prisoner
or pr.souers in jail or confinement, where lie or
tfiey slie.li be committed or confined on or by
authority of law for anv net done or omitted
to be done in pursuance of a law of the United
States, or any order, process or decree of any
Judge or Court thereof, any thing in any act
of Congress to the contrary notwithstand
ing."
Now, unless the writ of h Jcas corpus issued
by the Judge ol the District- Court was neces
sary lor the exercise of the jurisdiction of the
said court, or was to iuquiro into a commitment
under, or by color of the authority of tlie Uni
ted States, or to relieve some one imprisoned
lor an act done, or omitted to be done, in pur- i
suauec of a law of the United States, the Dis- J
triet Court had no power to issue it, and a
commitment for contempt in refusing to answer
it is an illegal imprisonment, which, under our !
hah-is carpus net, we are imperatively required i
to set aside.
it cannot lie pretended that the writ was
either asked for or granted to inquire into any
commitment made under or by color of the au
thority ol the United States, or to relieve from j
imprisonment for an act done or omitted to lie
done in pursuance of a law of the United
States, and, therefore, we may confine our in
quiry solely to the question whether it was no- j
cessarv for the exorcise of any jurisdiction giv
en to the District Court of the United States
tor the Eastern District of Peunyslvauia.
This t r ngs us to the question of the juris- j
diction of the courts of the United States, and j
more particularly that of the District Court, j
And here, without desiring or intending to dis
cuss at large if • a tun- and powers of tlie fed
eral government, it is proper to repeat what
Ims been so often said, and what lias never
been denied, that it is a government of enu
merated powers delegated to it by the several
states, or the pio.de thereof, without capacity
to enlarge or extend the powers so delegated
and enumerated, and t a' its courts of justice
are courts e>f limited jurisdiction, deriving their
authority from the constitution of the United
States, and the acts of Congress under the
constitution. Let us see what judicial power
was given by the people to the federal govern
ment, for that alone can lie rightly exercised
by its courts.
" The judicial power" (says the second sec
tion of the third article) "shall extend to all
eases in law and equity arising under this con- ;
stitiitioii, the laws of the United States, and
treaties made or which shall be made under
their authority, to all eases affecting ambassa- '
dors, other public ministers anil consuls, to all
eases of admiralty and maritime jurisdiction,to ;
controversies to which the United States shall j
be n party, to controversies between two or j
more states, between a state and a citizen of |
another state, between citizens of different i
states, between citizens of the same stateclaim- j
ing lands under grants of different states, and j
between a state or tiie citizens thereof and for- ;
cign states, citizens or subjects."
The, amendments subsequently made to this
article have no ! earing upon the question un
der consideration, nor is it necessary to exam
ine the various acts of Congress conferring ju
risdiction upon tlie Courts of the United States,
for no act of Congress can lie found extending
the jurisdiction beyond what is given by the
Constitution, so far as relates to tlie question
we are now considering. And if such ail act
should be passed it would be in direct conflict
with the 10i.ii amended article of tlie consti
tution, whieli declares that " the powers not
delegated to the United States by tlie Con
stitution, nor prohibited ly it to the states,
arc reserved to the states respectively or to the
jMOjile."
if this ease can be brought within the judicial
power of the courts ol the United States, it
mast be either—-
Ist. Because it arises under the constitution
or tin' laws of the United States.
Or, 2d. Because it is a controversy between
citizens of different, states, for it it, very plain
that there is no other clause in the constitu
tion which, by the most lutitudiuarjau eons trac
tion, could be made to include it.
Did it, arise under the constitution or the
laws of the United States ? hi order to give
a satisfactory answer to this quest ion, it is ne
cessary to see what the ease was.
If we confine ourselves strictly to the record
from the District Court, we learn from it that
on the 18tii day ot .fcnlv last. John H. Wheel
er presented his petition to (lie Hon. John K.
Kane, Judge of tlx- District Court for the Eas
tern District of Pennsylvania, setting forth
that he was the owner of three persons held to
service or labor by the laws of the state of
Virginia, said persons being respectively n lin
ed J .ue. aged about thirty live years ; Daniel,
aged about twelve years, and Isaiah, aged
about seven years ; persons of color ; and that
thev were detained from his possession h\ Pass
more \\ illiatitson, but not for uny criminal or
supposed criminal matter.
In accordance with the prayer of the peti
tion, a writ of /micas corpus was awarded, com
manding Passmore Williamson to bring the
bodies of the said Jane, Daniel and Isaiah, be
fore the Judges of the District Court forthwith.
To this writ Passmore \\ llliamsoii made a re
turn, verified by his affirmation, that tiie said
Jane, Daniel and Isaiah, nor eithefof them,
were at the time of the issuing of the writ, nor
at the time ol the return, nor at any other time
in the custody, power or possession of, nor eon
lined nor restrained their liberty by him ; and
that, therefore, he could not produce the bodies
as he was commanded.
This return was made on the 20th day of
July, A. D. lß.>;>. " Whereupon, afterwards,
to wit : oil the 27th day of July, A. D. 1855,
(says the record,) the counsel for the several
parties having been heard, and the said return
having been duly considered, it is ordered and
adjudged by the court, that the said Passmore
\\ illiamson be committed to the custody of
the marshal, without bail or uiainprize, as for
a contempt in refusing to make return to the
writ of /micas corpus, heretofore issued against
liirn, at the instance of Mr. John 11. Wheel
er."
Such is the record. Now, whilst lam will
ing to admit that the want of jurisdiction
should be made clear, I deny that in a case un
der our habeas corpus act the party averring
want of jurisdiction cannot go behind the re
cord to establish its non-existence. Jurisdic
tion, or the absence thereof, is a mixed ques
tion of law and fact. It is theprovincc of fact
to ascertain what the case is, and of law to de
termine whether the jurisdiction attaches to
the ease so ascertained. And says the 2d sec
tion oi our act ol 'BS, " and that the said judge
or justice may, according to the intent and
meaning of this act, be enabled, by investiga
ting the circumstances of the ease, to deter
mine whether, according to law, the said pris
oner ought to be bailed, remanded or discharg
ed, the return may, before or after it is filed,
by leave of the said judge or justice, be amend- 1
ed, and also suggestions made against it, so
that thereby material facts may be ascer
tained."
Tin's provision applies to eases of commit
ment or detainer for any criminal or, supposed
criminal matter, but the 14th section, which
applies to eases of restraint of liberty " under
any color or pretence whatsoever," provides
that " the court, judge or justice before whom
the party so confined or restrained shall be
brought, shall, after the return maik 1 , proceed
in the same manner as is hereinbefore prescrib
ed, to examine into tlie facts relating to the
ease, and into the cause of such confinement or
restraint, and thereupon either bail, remand or
discharge the party so brought, as to justice
shall appertain."
The right and duty of the Supreme Court of
a state to protect a citizen thereof from im
prisonment by a judge of a United States Court
having no jurisdiction over the cause of com
plaint, is so manifest, and so essentially neces
sary, under our dual system of government,
that 1 cannot believe that this right will ever
be abandoned or the duty avoided ; but, if we
concede what appears to be the law of the lat
ter eases in the federal courts, that the juris
diction need not appear affirmatively, and add
to it that the want of jurisdiction shall not lie
proved by evidence outside of the record, we
do virtually deny to the people of tlie state
the right to question the validity of an order
by a federal judge consigning them to the
walls of a prison " without bail or maiii
pvizc."
What a mockery to say to one restrained of
his liberty, "True, if the Judge or Court un
der whose order you are in prison, acted with
out jurisdiction, you are entitled to be discharg
ed, but the burthen is upon you to show that
there was no jurisdiction, and in showing this
we will not permit you to go beyond the record
made up by the party against whom you com
plain."
As the petitioner would be legally entitled,
upon the return of the writ, to establish the
truth of the facts set forth in his petition, so
far as they bear upon the question of jurisdic
tion, we are bound, before the return, to assume
that the facts are true as stated, and taking
them, tlie ease is this :
Johu 11. Wheeler voluntarily brought into
the state of Pennsylvania three persons of col
or, held by him, in the state of Virginia, as
slaves, with the intention of passing through
tills state. Whilst on board of a steamboat,
near Walnut street wharf, in the city of Phila
delphia, the petitioner, Passmore Williamson,
informed the mother that she was free bv the
laws of Pennsylvania, who, in the language of
the petition, " expressed her desire to have her
freedom, and finally, with her children, left the
boat of her own free will and accord, and with
out coercion or compulsion of any kind, and
having seen her in possession of her liberty
with her children, your petitioner (says the pe
tition) returned to his place of business, and
has never since seen the said Jane, Daniel and
Isaiah, or either of them, nor does lie know
where thev are, nor has he had any connection
of any kind with the subject.''
One owning slaves in a slave state volunta
rily brings them into a free state with the in
tention of passing through tiie free state.—
Whilst there, upon being told that they are
free, the slaves leave their master. Can a Judge
of the District Court of the United States com
pel their restoration through tin: medium of a
writ of habeas corpus directed to the person by
whom they were informed of their freedom ?
Or, in other words, is it a case arising under
the constitution and laws of the United
States ?
What article or section of the Constitution
has any bearing upon the right of a master to
pass through a free state with his slave or
slaves ? Or when lias Congress ever attemp
ted to legislate upon this question ? I most
unhesitatingly aver that neither in tlie Consti
tution of the United .Slates nor in the nets of
C'ott.'rtes can there be found a .seuteuec wlnch
lias any effect upon this question whatever. It
is a_ question to be decided by the law of tlie
state where the person is for the time being,
and that law must be determined by the judges
of the state, who have sworn to support the
Constitution of the state as well as that of the
I uitcd States—an oath which is never taken
by a federal judge.
Upon this question of jurisdiction it is whol
ly immaterial whether by the law of Pennsyl
vania a slaveholder has or has not the right ol
passing through our state with his slaves. If
he has the right, it is not in virtue of the con
stitution or laws of tlie United States, but by
law ot the state, and if no such right exists, it
is because the state law has forbidden it, or
has failed to recognize it. It is for the state
alone to legislate ypon this subject, and there
is no power on earth to call her to an account
ior her acts of omission or commission in this
behalf.
If this case could, by any reasonable con
struction, be brought within the terms of the
third clause of the second section of Article
Four of the Constitution of the United States,
jurisdiction might be claimed for the Federal
Courts, as then it would be a ease arising un
der the Constitution of the United States, al
though 1 believe the writ of habeas corpus is no
part of tlie machinery designed by Congress
for the rendition of fugitives from labor.
" No person (says the clause above mention
ed) held to service or labor in one state, under
the laws thereof, escaping into another, shall,
in consequence of any law or regulation there
in, be discharged from such service or labor,
but shall be delivered up on claim of the
party to whom such.service or labor may bo due."
By reference to the debates in the Conven
tion, it will be seen that this clause was inser
ted 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 been intended to
cover the right of transit, words would have
been use l evidencing such intention. Happily
there is no contrariety in the construction which
has been placed iqxiu this clause in the Con
stitution. No Judge has ever so manifestly
disregarded its plain and unequivocal language
as to hold that it applies to a slave voluntari
ly brought into a state by his master. Upon
the contrary, there is abundant authority that
such a case is not within either the letter or
the spirit of the constitutional provision for
the rendition of fugitives from labor. Said
Mr. Justice Washington, in er parte Simmons,
6 W. ('. R. Reports, 39( :
" The slave in this case having been volun
tarily brought by bis master into this state.—
1 have no cognizance of the ease, so far as
respects this application, and the master must
abide by the laws of this state, so far as they
may affect his right. If the man claimed as a
slave be not entitled to his freedom under the
laws of this state, the master must pursue such
remedy for his recovery as the laws of the state
have provided for him."
In Jones agf Vandzandt, sth Howard, 200,
Air. Justice Woodbury uses language equally
expressive : " But the power of national law
(said that eminent jurist) to pursue and regain
most kindsof property in the limits of a foreign!
government is rather an act of comity than
strict right, and hence as property in persons
might not thus lie recognized in sonic of the
states in the Union, and its reclamation not to
be allowed through either courtesy or right,
this clause was undoubtedly introduced into the
constitution as one of its compromises for the
safety of that portion of the Union which did
permit such property, and which otherwise
might often be deprived of it entirely by its
merely crossing the line of an adjoining state ;
this was thought to be too harsh a doctrine in
respect to any title to property of a friendly
neighbor, not brought nor placed in another
state under state laws by the owner himself, but
escaping their against his consent, and forth
with pursued in order to lie rcelaimod.
Other authorities might be quoted to the
same effect, but it is not necessary, for if it be
not clear that one voluntarily brought into a
state is not a fugitive, no judicial language can
ever make so. Will wc then, for the "sake of
sustaining this judicial jurisdiction," presume
that these slaves of Mr. Wheeler escaped from
Virginia into Pennsylvania, when no such alle
gation was made in his petition, when it is
expressly stated in the petition of Mr. "William
son, verified by his affirmation, that they were
brought here voluntarily by their master, and
when this fact is virtually conceded bv Ihe
Judge of the District Court in his opinion ?
Great as is my respect for tlie judicial authori
ties of the federal government, I cannot eon
sent to stulify myself in order to sustain their
unauthorized judgments, and more particularly
where, as in the case before us, it would be at
the expense of the liberty of a citizen of the I
commonwealth.
The only remaining ground upon which this
jurisdiction can be claimed, is that it was in a
controversy between citizens of different states,
and 1 shall dismiss this branch of the ease j
simply by affirming—lst, that the proceeding '
by habeas corpus, is, in no legal sense, a contra- 1
versy between private parties ; and if it were
to the Circuit Court alone is given this jurisdic
tion. For the correctness of the first position,
I refer to tiie opinion of Mr. Justice Baldwin
in 111 bates ftgt. Jennifer, published ill the
appendix to 1 } Peters, and to that of Judge j
Belts, of the Circuit Court of New York in'
Da rrti agt Mereriu ct 01, reported in sth How- j
ard 103. And for tlie second to the 11th ;
section of the Jiidiearv Act, passed on the 1
24th of September, 1789.
My view of this case lias been commit ted to ;
writing before 1 hud seen or heard the opinion
of the majority of the court. Having hmird
it hastily read but once, 1 may mistake its pur
port, but if I do not, it placer, the refusal of
the ha!res carpus mainly iqwin the ground that
the conviction for contempt was a soperato pro
ceeding, and that, us the District Court had J
jurisdiction to punish for contempts, we have
no power to revise its decision. Or, as it ap-!
pears from the record that tlie prisoners is in
en: tody upon .: co.ivii foi contempt, we are .
powerless to A rant him relict I
VOL. XVI. NO. 1(>.
Notwithstanding (lie numerous caws that
are cited to sustain this position, it appears to
me to be as novel as it is daugvrous. Every
court of justice in this country has, in some
degree, the power to commit for contempt.—
Can it be possible that a citizen once committ
ed for contempt is beyond the hope of relief,
even although the record shows that the alleg
ed contempt was not within the power of tin;
court to punish summarily ? Suppose that the
.lodge of the District Court should send to
prison an editor of a newspa|ier for a contempt
of his court in commenting upon his decision
in this very case ; would tiie prisoner be Ite
yond the reach of our writ of iuibeas corpus ?
If he our boasted security of personal
liberty is in truth an idle boast, and our con
stitutional guaranties and writs of right areas
of ropes of sand, lint in the name of the
law, i aver that no such power exists with
any court or judges, state or federal, and if it
is attempted to be exercised, there are modes
of relief, fuii and ample, for the exigency of
tlie occasion.
I have not had cither time or or opportunity
to examine all of'the cases cited, but, as far as
1 have examined them, they decide this and
nothing more —that where a court of compet
ent jurisdiction convicts one of a contempt,
another court, without appelate power, will
not re-examine the ease to determine whether
a contempt was really committed or not. The
history of punishments for contempt of conrt
and the legislative action thereon, both in our
state and Union, in an unuiixtukcahie manner
teaches, first, the liability of this power to
l e abused, and second, the promptness with
which its unguarded use has been followed by
legislative restrictions. It is no longer an un
limited power of a star chamber character, to
be used for the oppression of the citizen at the
lucre caprice of the judge or court, but it lias
its boundaries so distinctly defined that there
is no mistaking the extent to which our tri
bunals of law may go in punishing for this
offence.
In the words of the act of Congress of 2d
March, IS3J. "The power of the sevnrai
courts of the United States to issue attach
ments and inflict summary punishments for con
tempts of court, shall not be construed to ex
tend to any cases except the misbehavior of
any person or persons in the presence of said
courts, or so near thereto as to obstruct the
administration of justice, the misbehavior of
any of the officers of the said courts in their
official transactions, and the disobedience or
resistance by any officer of the said courts,
party, juror, witness, or any other person or
jiersons, to any lawful writ, process, order, rule,
decree, or command of said courts."
Now I'assmore Williamson was convicted of
a contempt for disobeying a writ of habeas
c r juts commanding him to produce before the
District Court certain persons claimed by Mr.
Wheeler as slaves. Was it a lawful writ ?
Clearly not, if the court had no jurisdiction to
issu" it ; ami that it had not I thiuk is very
plain. If it was unlaw fill, the person to whom
it was directed was not bound to obey it ; and,
in the very words of the statute, the power to
punish fur contempt " shall not be construed
to extend to it."
But says the opinion of the majority, he
was convicted of a contempt of court, and we
will not look into the record to see how tho
contempt was committed. 1 answer this by
asserting that you cannot see the conviction
without seeing the cause, for it is a part of tho
same record which consists, Ist, of the petition ;
2d, the writ and alias writ of habeas corpus ;
3d, the return, and 4th, the judgment. "It is
ordered and adjudged by the court that the
said I'assmore Williamson be committed to the
custody of the Marshal without bail or main
prize, as for a contempt in refusing to make re
turn to writ of habeas corpus heretofore issued
against him at the instance of Mr. John 11.
Wheeler."
As 1 understand the opinion of a majority
of my brethern, as soon as we got to the word
contempt the book must be closed, and it be
comes instantly sealed as to the residue of tho
record. To sustain this commitment we must,
it seems, first presume, in the very teeth of the
admitted fact, that these were runaway slaves ;
and second, we must be careful to read only
portions of the record, lest we should find that
the prison T was committed for refusing to obey
an unlawful writ.
I cannot forbear t lie expression of the opin
ion that the rule laid down in this ease, by the
majority, is fraught with great danger to tho
most cherished rights of the citizens of the
state. Whilst in contests involving the right
of property merely, I presume we may still
treat the judgments of the United States
(Mints, in cases of jurisdiction, as nullities, yet
if a single Judge thinks proper to determine
that one of our citizens has been guilty of
contempt, even if such determination had its
foundation in case upon which the judge had
no power to promote judgment, and was most
manifestly in direct violation of a solemn act
of the very legislative authority that created
the court over which the judge presides, it
seems that such determination is to have all
the force and effect of a judgment pronounced
by a court of competent jurisdiction, acting
within the admitted sphere of its constitutional
power.
Nuv, more. We confess ourselves powerless
to protect our citizens from the aggression of a
Court as foreign from our State government in
matters nor committed to its jurisdiction as the
Court oi (Queens Bench in England, and this
upon tlie authority of decisions pronounced in
eases not at all analogous to theononow under
considciation. 1 believe this to be the first re
cord case w here the Supreme Court of a Slate
has refused the pray, r of a citizen for the writ
of /: !/<■.;.* corpus, to impure into the legality of
an imprisonment bv a Judge of a Federal
Court for contempt, in refusing obediencoto a
writ void for want of jurisdiction.
1 will conclude by recapitulating the grounds
upon which 1 think this writ should be award
ed.
Ist. At common law, and by the statutes of
1 7 sf, the writ of hale •* c< rpu vml s.<b iieicatlvtu
it writ • i Csgut dc,u..ndible whenever a po
ly n i.i ti.a o.\ Rurru l'.w.i; j