CHAPTER XVI.

ROBERT WRIGHT.

I now come to the last of the profligate chief justices of England; for

since the Revolution they have all been men of decent character, and most

of them have adorned the seat of justice by their talents and

acquirements, as well as by their virtues. Sir Robert Wright, if excelled

by some of his predecessors in bold crimes, yields to none in ignorance of

his profession, and beats them all in the fraudulent and sordid vices.

He was the son of a respectable gentleman who lived near Thetford, in

Suffolk, and was the representative of an ancient family, long seated at

Kelverstone, in Norfolk; he enjoyed the opportunity of receiving a good

education at Thetford Free Grammar School, and at the University of

Cambridge; and he had the advantage of a very handsome person and

agreeable manner. But he was by nature volatile, obtuse, intensely

selfish, with hardly a particle of shame, and quite destitute of the

faculty of distinguishing what was base from what was honorable. Without

any maternal spoiling, or the contamination of bad company, he showed the

worst faults of childhood, and these ripened, while he was still in early

youth, into habits of gaming, drinking, and every sort of debauchery.

There was a hope of his reformation when, being still under age, he

captivated the affections of one of the daughters of Dr. Wren, Bishop of

Ely, and was married to her. But he continued his licentious course of

life, and, having wasted her fortune, he treated her with cruelty.

He was supposed to study the law at an Inn of Court, but when he was

called to the bar he had not imbibed even the first rudiments of his

profession. Nevertheless, taking to the Norfolk Circuit, the extensive

influence of his father-in-law, which was exercised unscrupulously in his

favor, got him briefs, and for several years he had more business than

North, (afterwards Lord Keeper Guilford,) a very industrious lawyer, who

joined the circuit at the same time. "But withal," says Roger, the

inimitable biographer, "he was so poor a lawyer that he could not give an

opinion upon a written case, but used to bring such cases as came to him

to his friend, Mr. North, and he wrote the opinion on a paper, and the

lawyer copied it and signed under the case as if it had been his own. It

run so low with him, that when North was at London, he sent up his cases

to him, and had opinions returned by the post; and in the mean time he put

off his clients upon pretence of taking more serious consideration."

At last the attorneys found him out so completely that they entirely

deserted him, and he was obliged to give up practice. By family interest

he obtained the lucrative sinecure of "treasurer to the chest at Chatham,"

but by his voluptuous and reckless course of life he got deeper and deeper

in debt, and he mortgaged his estate to Mr. North for fifteen hundred

pounds, the full amount of its value. From some inadvertence, the title

deeds were allowed to remain in Wright's hands, and being immediately

again in want, he applied to Sir Walter Plummer to lend him five hundred

pounds on mortgage, offering the mortgaged estate as a security, and

asserting that this would be the first charge upon it. The wary Sir

Walter thought he would make himself doubly safe by requiring an affidavit

that the estate was clear from all incumbrances. This affidavit Wright

swore without any hesitation, and he then received the five hundred

pounds. But the money being spent, and the fraud being detected, he was in

the greatest danger of being sent to jail for debt, and also of being

indicted for swindling and perjury.

He had only one resource, and this proved available. Being a clever mimic,

he had been introduced into the circle of parasites and buffoons who

surrounded Jeffreys, at this time chief justice of the King's Bench, and

used to make sport for him and his companions in their drunken orgies by

taking off the other judges, as well as the most eminent counsel. One day,

being asked why he seemed to be melancholy, he took the opportunity of

laying open his destitute condition to his patron, who said to him, "As

you seem to be unfit for the bar, or any other honest calling, I see

nothing for it but that you should become a judge yourself." Wright

naturally supposed that this was a piece of wicked pleasantry, and when

Jeffreys had declared that he was never more serious in his life, asked

how it could be brought about, for he not only felt himself incompetent

for such an office, but he had no interest, and, still more, it so

happened, unfortunately, that the Lord Keeper Guilford, who made the

judges, was fully aware of the unaccountable lapse of memory into which he

had fallen when he swore the affidavit for Sir Walter Plummer, that his

estate was clear from all incumbrances, the lord keeper himself being the

first mortgagee. _Jeffreys, C. J._--"Never despair, my boy; leave all that

to me."

We know nothing more of the intrigue with certainty, till the following

dialogue took place in the royal closet. We can only conjecture that in

the meanwhile Jeffreys, who was then much cherished at court, and was

impatient to supersede Guilford entirely, had urgently pressed the king

that Wright might be elevated to the bench as a devoted friend of the

prerogative, and that, as the lord keeper had a prejudice against him, his

majesty ought to take the appointment into his own hands. But we certainly

know that, a vacancy occurring in the Court of Exchequer, the lord keeper

had an audience of his majesty to take his pleasure on the appointment of

a new baron, and that he named a gentleman at the bar, in great practice

and of good character, as the fittest person to be appointed, thinking

that Charles would nod assent with his usual easy indifference, when, to

his utter amazement, he was thus interrogated: "My lord, what think you of

Mr. Wright? Why may not he be the man?" _Lord Keeper._--"Because, sir, I

know him too well, and he is the most unfit person in England to be made a

judge." _King._--"Then it must not be." Upon this, the lord keeper

withdrew, without having received any other notification of the king's

pleasure; and the office remained vacant.

Again there is a chasm in the intrigue, and we are driven to guess that

Jeffreys had renewed his solicitation, had treated the objections started

to Wright as ridiculous, and had advised the cashiering of the lord keeper

if he should prove obstinate. The next time that the lord keeper was in

the royal presence, the king, opening the subject of his own accord,

observed, "Good my lord, why may not Wright be a judge? He is strongly

recommended to me; but I would have a due respect paid to you, and I would

not make him without your concurrence. Is it impossible, my lord?" _Lord

Keeper._--"Sir, the making of a judge is your majesty's choice, and not

my pleasure. I am bound to put the seal as I am commanded, whatever the

person may be. It is for your majesty to determine, and me, your servant,

to obey. But I must do my duty by informing your majesty of the truth

respecting this man, whom I personally know to be a dunce, and no lawyer;

who is not worth a groat, having spent his estate by debauched living; who

is without honesty, having been guilty of wilful perjury to gain the

borrowing of a sum of money. And now, sir, I have done my duty to your

majesty, and am ready to obey your majesty's commands in case it be your

pleasure that this man be a judge." The king thanked the lord keeper,

without saying more, but next day there came a warrant under the sign

manual for creating the king's "trusty and well-beloved Robert Wright" a

baron of his Exchequer, and orders were given for making out the patent in

due form; and the detected swindler, knighted, and clothed in ermine, took

his place among the twelve judges of England.

People were exceedingly shocked when they saw the seat of justice so

disgraced; but this might be what Jeffreys intended; and one of his first

acts, when he himself obtained the great seal, was to promote his

_protégé_ from being a baron of the Exchequer to be a judge of the Court

of King's Bench.

Wright continued to do many things which caused great scandal, and,

therefore, was dearer than ever to his patron, who would have discarded

him if he had shown any symptoms of reformation. He accompanied General

Jeffreys as _aide de camp_ in the famous "campaign in the west;" in other

words, he was joined in commission with him as a judge in the "bloody

assize," and, sitting on the bench with him at the trial of Lady Lisle and

the others which followed, concurred in all his atrocities. He came in

for very little of the bribery; Jeffreys, who claimed the lion's share,

tossing him by way of encouragement one solitary pardon, for which a small

sum only was expected.

But on the death of Sir Henry Beddingfield he was made chief justice of

the Common Pleas; and very soon afterwards, the unexpected quarrel

breaking out between Sir Edward Herbert and the government about martial

law and the punishment of deserters,[152] the object being to find some

one who by no possibility could go against the government, or hesitate

about doing any thing required of him, however base or however bloody,

Wright was selected as chief justice of the king's bench. Unluckily we

have no account of the speeches made at any of his judicial installations,

so that we do not know in what terms his learning and purity of conduct

were praised, or what were the promises which he gave of impartiality and

of rigorous adherence to the laws of the realm.

On the very day on which he took his seat on the bench he gave good

earnest of his servile spirit. The attorney general renewed his motion for

an order to execute at Plymouth the deserter who had been capitally

convicted at Reading for deserting his colors. The new chief justice,

without entering into reasons, or explaining how he came to differ from

the opinion so strongly expressed by his predecessor, merely said, "Be it

so!" The puisnies now nodded assent, and the prisoner was illegally

executed at Plymouth under the order so pronounced.

Confidence was entirely lost in the administration of justice in

Westminster Hall, for all the three common law courts were at last filled

by incompetent and corrupt judges. Pettifogging actions only were brought

in them, and men settled their disputes by arbitration, or by taking the

opinion of counsel. The reports during the whole reign of James II. hardly

show a single question of importance settled by judicial decision. Thus,

having no distinct means of appreciating Chief Justice Wright's demerits

as a judge in private causes, we must at once follow him in his devious

course as a political judge.

The first occasion on which, after his installation, he drew upon himself

the eyes of the public was when he was sent down to Magdalene College,

Oxford, for the purpose of turning it into a Popish seminary. Upon a

vacancy in the office of president, the fellows, in the exercise of their

undoubted right, had elected the celebrated Dr. Hough, who had been duly

admitted into the office; and the preliminary step to be taken was to

annul the election, for the purpose of making way for another candidate,

named by the king. There were associated with Wright, in this commission,

Cartwright, Bishop of Chester, who was ready to be reconciled to Rome in

the hope of higher preferment, and Sir Thomas Jenner, a baron of the

Exchequer, a zealous follower in the footsteps of the chief justice of the

King's Bench. Nothing could equal the infamy of their object except the

insolence of their behavior in trying to accomplish it. They entered

Oxford escorted by three troops of cavalry with drawn swords, and, having

taken their seats with great parade in the hall of the college, summoned

the fellows to attend them. These reverend and gallant divines appeared,

headed by their new president, who defended his rights with skill, temper

and resolution; steadily maintaining that, by the laws of England, he had

a freehold in his office, and in the house and revenues annexed to it.

Being asked whether he submitted to this royal visitation, he answered:--

"My lords, I do declare here, in the name of myself and the fellows, that

we submit to the visitation as far as it is consistent with the laws of

the land and the statutes of the college, and no further." _Wright, C.

J._--"You cannot imagine that we act contrary to the laws of the land; and

as to the statutes, the king has dispensed with them. Do you think we come

here to break the laws?" _Hough._--"It does not become me, my lords, to

say so; but I will be plain with your lordships. I find that your

commission gives you authority to alter the statutes. Now, I have sworn to

uphold and obey them; I must admit no alteration of them, and by the grace

of God never will." He was asked whether one of the statutes of the

founder did not require mass to be said in the college chapel; but he

answered, "not only was it unlawful, but it had been repealed by the act

of Parliament requiring the use of the Book of Common Prayer." However,

sentence was given that the election of Hough was void, and that he be

deprived of his office of president. _Hough._--"I do hereby protest

against all your proceedings, all you have done, or shall hereafter do, in

prejudice of me and my right, and I appeal to my sovereign lord the king

in his courts of justice." "Upon which (says a contemporary account) the

strangers and young scholars in the hall gave a _hum_, which so much

incensed their lordships that the lord chief justice was not to be

pacified, but, charging it upon the president, bound him in a bond of one

thousand pounds, and security to the like value, to make his appearance at

the King's Bench bar on the 12th of November; and, taking occasion to pun

upon the president's name, said to him, "Sir, you must not think to _huff_

us." He then ordered the door of the president's house to be broken open

by a blacksmith; and a fellow observing, "I am informed that the proper

officer to gain possession of a freehold is the sheriff with a _posse

comitatus_," Wright said, "I pray who is the best lawyer, you or I? Your

Oxford law is no better than your Oxford divinity. If you have a mind to a

_posse comitatus_, you may have one soon enough."

Having ejected Hough, he issued a mandate for expelling all the

contumacious fellows, and insured the expulsion of James from his throne,

when the commissioners returned in triumph to London.

Wright was likewise a member of the Ecclesiastical Court of High

Commission, of which Jeffreys was president, and he strenuously joined in

all the judgments of that illegal and arbitrary tribunal, which, with a

_non obstante_, had been revived in the very teeth of an existing act of

Parliament. He treated with ridicule the scruples of Sancroft, the

Archbishop of Canterbury, and others who refused to sit upon it, and he

urged the infliction of severe punishment on all who denied its

jurisdiction.

Although he was not a member of the Cabinet, he usually heard from the

chancellor the measures which had been resolved upon there, and he was

ever a willing tool in carrying them into effect.

When the clergy were insulted, and the whole country was thrown into a

flame, by the fatal order in Council for reading the "Declaration of

Indulgence" in all churches and chapels on two successive Sundays, he

contrived an opportunity of declaring from the bench his opinion that it

was legal and obligatory. Hearing that the London clergy were almost

unanimously resolved to disobey it, he sent a peremptory command to the

priest who officiated in the chapel of Serjeants' Inn to read the

declaration with a loud voice; and on the famous Sunday, the 20th of May,

1688, he attended in person, to give weight to the solemnity. However, he

was greatly disappointed and enraged to find the service concluded without

any thing being uttered beyond what the rubric prescribes. He then

indecently, in the hearing of the congregation, abused the priest as

disloyal, seditious, and irreligious, for contemning the authority of the

head of the church. The clerk ingeniously came forth to the rescue of his

superior, and took all the blame upon himself by saying that "he had

forgot to bring a copy," and the chief justice, knowing that he had no

remedy, was forced to content himself with this excuse.[153]

The seven bishops being committed to the Tower, and prosecuted for a

conspiracy to defame the king and to overturn his authority, because they

had presented a petition to him praying that they might not be forced to

violate their consciences and to break the law, Wright, the lowest wretch

that had ever appeared on the bench in England, was to preside at the

most important state trial recorded in our annals. The reliance placed

upon his abject subserviency no doubt operated strongly in betraying the

government into this insane project of treating as common malefactors the

venerable fathers of the Protestant church, now regarded by the whole

nation with affectionate reverence. The consideration was entirely

overlooked by the courtiers, that, from the notorious baseness of his

character, his excessive zeal might be revolting to the jury, and might

produce an acquittal. It is supposed that a discreet friend of the

government had given him a caution to bridle his impetuosity against the

accused, as the surest way of succeeding against them; for, during the

whole proceeding, he was less arrogant than could have been expected, and

it is much more probable that his forbearance arose from obedience to

those whom he wished to please, than from any reverence for the sacred

character of the defendants or any lurking respect for the interests of

justice.

They were twice placed at the bar before him--first when they were brought

up by the lieutenant of the Tower to be arraigned, and afterwards when a

jury was empannelled for their trial. On the former occasion the questions

were whether they were lawfully in custody, and were then bound to plead.

The chief justice checked the opposing counsel with an air of

impartiality, saying, "Look you, gentlemen, do not fall upon one another,

but keep to the matter in hand." And, before deciding for the crown, he

said, "I confess it is a case of great weight, and the persons concerned

are of great honor and value. I would be as willing as any body to testify

my respects and regards to my lords the bishops, if I could see any thing

in their objections worth considering. For here is the question, whether

the fact charged in the warrant of commitment be such a misdemeanor as is

a breach of the peace. I cannot but think it is such a misdemeanor as

would have required sureties of the peace, and if sureties were not given,

a commitment might follow." He was guilty of gross injustice in refusing

leave to put in a plea in abatement; but he thus mildly gave judgment: "We

have inquired whether we may reject a plea, and, truly, I am satisfied

that we may if the plea is frivolous; and this plea containing no more

than has been overruled already, my lords the bishops must now plead

guilty or not guilty."

When the trial actually came on, he betrayed a partiality for which, in

our times, a judge would be impeached; but, compared with himself, so

decorous was he, that he was supposed to be overawed by the august

audience in whose presence he sat. It was observed that he often cast a

side glance towards the thick rows of earls and barons by whom he was

watched, and who, in the next Parliament, might be his judges. One

bystander remarked that "he looked as if all the peers present had halters

in their pockets."

The counsel for the crown having, in the first instance, failed to prove a

publication of the supposed libel in the county of Middlesex, and only

called upon the court to suppose or presume it, the chief justice said: "I

cannot suppose it; I cannot presume any thing. I will ask my brothers

their opinion, but I must deal truly with you; I think there is not

evidence against my lords the bishops. It would be a strange thing if we

should go and presume that these lords did it when there is no sort of

evidence to prove that they did it. We must proceed according to forms and

methods of law. People may think what they will of me, but I always

declare my mind according to my conscience." He was actually directing the

jury to acquit, and the verdict of not guilty would have been instantly

pronounced, when Finch, one of the counsel for the bishops, most

indiscreetly said they had evidence on their side to produce. The young

gentleman was pulled down by his leaders, who desired the chief justice to

proceed. And now his lordship showed the cloven foot, for he exclaimed,

"No, no, I will hear Mr. Finch. Go on; my lords the bishops shall not say

of me that I would not hear their counsel. I have been already told of

being counsel against them, and they shall never say I would not hear

counsel for them. Such a learned man as Mr. Finch must have something

material to offer. He shall not be refused to be heard by me, I assure

you. Why don't you go on, Mr. Finch?"

At this critical moment it was announced that the Earl of Sunderland, the

president of the council,--who was present in the royal closet when the

bishops presented their petition to the king at Whitehall,--was at hand,

and would prove a publication in Middlesex. The chief justice then said,

with affected calmness, but with real exultation, "Well, you see what

comes of the interruption. I cannot help it; it is your own fault." There

being a pause while they waited for the arrival of the Earl of Sunderland,

the chief justice, addressing Sir Bartholomew Shower, one of the counsel

for the crown, whom he had stopped at an early stage of the trial, and

against whom he had some private spite, observed with great insolence,

"Sir Bartholomew, now we have time to hear your speech, if you will. Let

us have it."

At last the witness arrived, and, proving clearly a publication in

Middlesex, the case was again launched, and, after hearing counsel on the

merits, it was to be left to the determination of the jury.

The chief justice, thinking to carry it all his own way, was terribly

baffled, not only by the sympathy of the audience with the bishops, which

evidently made an impression on the jury, but by the unexpected honesty of

one of his brother judges, Mr. Justice John Powell, who had been a quiet

man, unconnected with politics, and, being a profound lawyer, had been

appointed to keep the Court of King's Bench from falling into universal

contempt. Sir Robert Sawyer beginning to comment upon a part of the

declaration which the bishops objected to, "that from henceforth the

execution of all laws against nonconformity to the religion established,

or the exercise of any other religion, should be suspended," _Wright, C.

J._, exclaimed, "I must not suffer this; they intend to dispute the king's

power of suspending laws." _Powell, J._--"My lord, they must necessarily

fall upon the point; for, if the king hath no such power, (as clearly he

hath not, in my judgment,) the natural consequence will be that this

petition is no diminution of the king's regal power, and so not seditious

or libellous." _Wright, C. J._--"Brother, I know you are full of that

doctrine; but, however, my lords the bishops shall have no occasion to say

that I deny to hear their counsel. Brother, you shall have your will for

once; I will hear them; let them talk till they are weary." _Powell,

J._--"I desire no greater liberty to be granted them than what, in

justice, the court ought to grant; that is, to hear them in defence of

their clients."

As the speeches for the defendants proceeded, and were producing a great

effect upon all who heard them, the solicitor general made a very

irregular remark, accompanied by a fictitious yawn--"We shall be here

till midnight." The chief justice, instead of reprimanding him, chimed in

with the impertinence, saying, "They have no mind to have an end of the

cause, for they have kept it up three hours longer than they need to have

done." _Serjeant Pemberton._--"My lord, this case does require a great

deal of patience." _Wright, C. J._--"It does so, brother, and the court

has had a great deal of patience; but we must not sit here only to hear

speeches." In trying to put down another counsel, who was making way with

the jury, he observed, "If you say anything more, pray let me advise you

one thing--don't say the same thing over and over again; for, after so

much time spent, it is irksome to all company, as well as to me."

When it came to the reply of Williams, the renegade solicitor general, who

in his day had been "a Whig and something more," he laid down doctrines

which called forth the reprobation of Judge Powell, and even shocked the

chief justice himself, for he denied that any petition could lawfully be

presented to the king except by the lords and commons in Parliament

assembled. _Powell, J._--"This is strange doctrine. Shall not the subject

have liberty to petition the king but in Parliament? If that be law, the

subject is in a miserable case." _Wright, C. J._--"Brother, let him go on;

we will hear him out, though I approve not of his position." The unabashed

Williams continued, "The lords may address the king in Parliament, and the

commons may do it; but therefore that the bishops may do it out of

Parliament, does not follow. I'll tell you what they should have done: if

they were commanded to do anything against their consciences, they should

have acquiesced till the meeting of the Parliament."[154] (Here, says the

reporter, the people in court hissed.) _Attorney General._--"This is very

fine indeed: I hope the court and the jury will take notice of this

carriage." _Wright, C. J._--"Mr. Solicitor, I am of opinion that the

bishops might petition the king; but this is not the right way. If they

may petition, yet they ought to have done it after another manner; for if

they may, in this reflective way, petition the king, I am sure it will

make the government very precarious." _Powell, J._--"Mr. Solicitor, it

would have been too late to stay for a Parliament, for the act they

conceived to be illegal was to be done forthwith; and if they had

petitioned and not shown the reason why they could not obey, it would have

have been looked upon as a piece of sullenness, and for that they would

have been as much blamed on the other side."

The chief justice, to put on a semblance of impartiality, attempted to

stop Sir Bartholomew Shower, who wished to follow in support of the

prosecution, and, being a very absurd man, was likely to do more harm than

good. _Wright, C. J._--"I hope we shall have done by and by." _Sir B.

S._--"If your lordship don't think fit, I can sit down." _Wright, C.

J._--"No! no! Go on, Sir Bartholomew--you'll say I have spoiled a good

speech." _Sir B. S._--"I have no good speech to make, my lord; I have but

a very few words to say." _Wright, C. J._--"Well, go on, sir; go on."

In summing up to the jury, the chief justice said:--

"This is a case of very great concern to the king and the government on

the one side, and to my lords the bishops on the other. It is an

information against his grace my lord of Canterbury and the other six

noble lords, for composing and publishing a seditious libel. At first we

were all of opinion that there was no sufficient evidence of publication

in the county of Middlesex, and I was going to have directed you to find

my lords the bishops not guilty; but it happened that, being interrupted

in my direction by an honest, worthy, learned gentleman, the king's

counsel took the advantage, and, informing the court that they had further

evidence, we waited till the lord president came, who told us how the

petition was presented by the right reverend defendants to the king at

Whitehall. Then came their learned counsel and told us that my lords the

bishops are guardians of the church, and great peers of the realm, and

were bound in conscience to act as they did. Various precedents have been

vouched to show that the kings of England have not the power assumed by

his present majesty in issuing the declaration and ordering it to be read;

but concessions which kings sometimes make, for the good of the people,

must not be made law; for this is reserved in the king's breast to do what

he pleases in it at any time. The truth of it is, the dispensing power is

out of the case, and I will not take upon me to give any opinion upon it

now; for it is not before me. The only question for you is a question of

fact, whether you are satisfied that this petition was presented to the

king at Whitehall. If you disbelieve the lord president, you will at once

acquit the defendants. If you give credit to his testimony, the next

consideration is, whether the petition be a seditious libel, and this is a

question of law on which I must direct you. Now, gentlemen, anything that

shall disturb the government, or make mischief and a stir among the

people, is certainly within the case '_de libellis famosis_;' and I must,

in short, give you my opinion--I do take it to be a libel. But this being

a point of law, if my brothers have anything to say to it, I suppose they

will deliver their opinions."

Mr. Justice Holloway, though a devoted friend of the government, had in

his breast some feeling of shame, and observed,--

"If you are satisfied there was an ill intention of sedition or the like,

you should find my lords the bishops guilty; but if they only delivered a

petition to save themselves harmless, and to free themselves from blame,

by showing the reason of their disobedience to the king's command, which

they apprehend to be a grievance to them, I cannot think it a libel."

_Wright, C. J._--"Look you, by the way, brother, I did not ask you to sum

up the evidence, (for that is not usual,) but only to deliver your opinion

whether it be a libel or no." _Powell, J._--"Truly, I cannot see, for my

part, anything of sedition or any other crime fixed upon these reverend

fathers. For, gentlemen, to make it a libel, it must be false, it must be

malicious, and it must tend to sedition. As to the falsehood, I see

nothing that is offered by the king's counsel, nor anything as to the

malice; it was presented with all the humility and decency becoming

subjects when they approach their prince. In the petition, they say,

because they conceive the thing that was commanded them to be against the

law of the land, therefore they do desire his majesty that he would be

pleased to forbear to insist upon it. If there be no such dispensing

power, there can be no libel in the petition which represented the

declaration founded on such a pretended power to be illegal. Now,

gentlemen, this is a dispensation with a witness; it amounts to an

abrogation and utter repeal of all the laws; for I can see no difference,

nor know of any in law, between the king's power to dispense with laws

ecclesiastical, and his power to dispense with any other laws whatsoever.

If this be once allowed of, there will need no Parliament: all the

legislature will be in the king--which is a thing worth considering--and I

leave the issue to God and your own consciences."

Allybone, however, on whom James mainly relied, foolishly forgetting the

scandal which would necessarily arise from the Protestant prelates being

condemned by a Popish judge for trying to save their church from Popery,

came up to the mark, and, in the sentiments he uttered, must have equalled

all the expectations entertained of him by his master:--

"In the first place," said he, "no man can take upon him to write against

the actual exercise of the government, unless he have leave from the

government. If he does, he makes a libel, be what he writes true or false;

if we once come to impeach the government by way of argument, it is

argument that makes government or no government. So I lay down, that the

government ought not to be impeached by argument, nor the exercise of the

government shaken by argument. Am I to be allowed to discredit the King's

ministers because I can manage a proposition, in itself doubtful, with a

better pen than another man? This I say is a libel. My next position is,

that no private man can take upon him to write concerning the government

at all; for what has any private man to do with the government? It is the

business of the government to manage matters relating to the government;

it is the business of subjects to mind only their private affairs. If the

government does come to shake my particular interest, the law is open for

me, and I may redress myself; but when I intrude myself into matters which

do not concern my particular interest, I am a libeller. And, truly, the

attack is the worse if under a specious pretence; for, by that rule, every

man that can put on a good vizard may be as mischievous as he will, so

that whether it be in the form of a supplication, or an address, or a

petition, let us call it by its true denomination, it is a libel." He then

examined the precedents which had been cited, displaying the grossest

ignorance of the history as well as constitution of the country; and,

after he had been sadly exposed by Mr. Justice Powell, he thus concluded:

"I will not further debate the prerogatives of the crown or the privileges

of the subject; but I am clearly of opinion that these venerable bishops

did meddle with that which did not belong to them; they took upon

themselves to contradict the actual exercise of the government, which I

think no particular persons may do."

The chief justice, without expressing any dissent, merely said, "Gentlemen

of the jury, have you a mind to drink before you go?" So wine was sent

for, and they had a glass apiece; after which they were marched off in

custody of a bailiff; who was sworn not to let them have meat or drink,

fire or candle, until they were agreed upon their verdict.

All that night they were shut up, Mr. Arnold, the king's brewer, standing

out for a conviction till six next morning, when, being dreadfully

exhausted, he was thus addressed by a brother juryman: "Look at me; I am

the largest and the strongest of the twelve, and, before I find such a

petition as this a libel, here I will stay till I am no bigger than a

tobacco-pipe."

The court sat again at ten, when the verdict of not guilty was pronounced,

and a shout of joy was raised which was soon reverberated from the

remotest parts of the kingdom. One gentleman, a barrister of Gray's Inn,

was immediately taken into custody in court, by order of the lord chief

justice, who, with an extraordinary command of temper and countenance,

said to him in a calm voice,--"I am as glad as you can be that my lords

the bishops are acquitted, but your manner of rejoicing here in court is

indecent; you might rejoice in your chamber or elsewhere, and not here.

Have you any thing more to say to my lords the bishops, Mr. Attorney?" _A.

G._--"No, my lord." _Wright, C. J._--"Then they may withdraw,"--and they

walked off; surrounded by countless thousands, who eagerly knelt down to

receive their blessing.[155]

Justice Holloway was forthwith cashiered, as well as Justice Powell; and

there were serious intentions that Chief Justice Wright should share their

fate, as the king ascribed the unhappy result of the trial to his

pusillanimity--contrasting him with Jeffreys, who never had been known to

miss his quarry. This esteemed functionary held the still more important

office of lord high chancellor, and, compared with any other competitor,

Wright, notwithstanding his occasional slight lapses into

conscientiousness, appeared superior in servility to all who could be

substituted for him.[156] Allybone was declared to be "the man to go

through thick and thin;" but, unfortunately, he had made himself quite

ridiculous in all men's eyes by the palpable blunders he had recklessly

fallen into during the late trial; and he felt so keenly the disgrace he

had brought on himself and his religion, that he took to his bed and died

a few weeks afterwards.

Thus, when William of Orange landed at Torbay, Wright still filled the

office of chief justice of the King's Bench. He continued to sit daily in

court till the flight of King James, when an interregnum ensued, during

which all judicial business was suspended, although the public

tranquillity was preserved, and the settlement of the nation was conducted

by a provisional government. After Jeffreys had tried to make his escape,

disguised as a sailor, and was nearly torn to pieces by the mob, Wright

concealed himself in the house of a friend, and being less formidable and

less obnoxious (for he was called the "_jackal_ to the _lion_,") he

remained some time unmolested; but upon information, probably ill-founded,

that he was conspiring with Papists who wished to bring back the king, a

warrant was granted against him by the Privy Council, on the vague charge

of "endeavoring to subvert the government." Under this he was apprehended,

and carried to the Tower of London; but after he had been examined there

by a committee of the House of Commons, it was thought that this custody

was too honorable for him, and he was ordered to be transferred to

Newgate. Here, from the perturbation of mind which he suffered, he was

seized with a fever, and he died miserably a few days after, being

deafened by the cheers which were uttered when the Prince and Princess of

Orange were declared King and Queen of England.

His pecuniary embarrassments had continued even after he became a judge,

and, still living extravagantly, his means were insufficient to supply him

with common comforts in his last hours, or with a decent burial. His end

holds out an awful lesson against early licentiousness and political

profligacy. He was almost constantly fighting against privation and

misery, and during the short time that he seemed in the enjoyment of

splendor he was despised by all good men, and he must have been odious to

himself. When he died, his body was thrown into a pit with common

malefactors; his sufferings, when related, excited no compassion; and his

name was execrated as long as it was recollected.

It is lucky for the memory of Wright that he had contemporaries such as

Jeffreys and Scroggs, who considerably exceeded him in their atrocities.

Had he run the same career in an age not more than ordinarily wicked, his

name might have passed into a by-word, denoting all that is odious and

detestable in a judge; whereas his misdeeds have long been little known,

except to lawyers and antiquaries.

It is a painful duty for me to draw them from their dread abode; but let

me hope that, by exposing them in their deformity, I may be of some

service to the public. Ever since the reaction which followed the passing

of the reform bill, there has been a strong tendency to mitigate the

errors and to lament the fate of James II. This has shown itself most

alarmingly among the rising generation; and there seems reason to dread

that we may soon be under legislators and ministers who, believing in the

divine right of kings, will not only applaud, but act upon, the principles

of arbitrary government. Some good may arise from showing in detail the

practical results of such principles in the due administration of

justice--the chief object, it has been said, for which man renounces his

natural rights, and submits to the restraints of magisterial rule.[157]

APPENDIX.

No. I.

_The case of Passmore Williamson, as stated by himself in his petition for

a habeas corpus, to the Supreme Court of Pennsylvania._

_To the Honorable the Judges of the Supreme Court of Pennsylvania:_

The petition of Passmore Williamson respectfully sheweth: That your

petitioner is a citizen of Pennsylvania, and a resident of Philadelphia;

that he is a member of "The Pennsylvania Society for promoting the

abolition of Slavery, and for the relief of free negroes unlawfully held

in bondage, and for improving the condition of the African race,"

incorporated by act of Assembly passed the 8th day of December, A. D.

1789, of which Dr. Benjamin Franklin was the first president, and that he

is secretary of the acting committee of said society.

That on Wednesday, the 18th day of July last past, your petitioner was

informed that certain negroes, held as slaves, were then at Bloodgood's

hotel, in the city of Philadelphia, having been brought by their master

into the state of Pennsylvania, with the intention of passing through to

other parts. Believing that the persons thus held as slaves were entitled

to their freedom by reason of their having been so brought by their master

voluntarily into the state of Pennsylvania, the petitioner, in the

fulfilment of the official duty imposed upon him by the practice and

regulations of the said society, went to Bloodgood's hotel for the purpose

of apprizing the alleged slaves that they were free, and finding that they

with their master had left said hotel, and gone on board the steamboat of

the New York line, then lying near Walnut Street wharf, your petitioner

went on board the same, found the party, consisting of a woman named Jane,

about thirty-five years of age, and her two sons, Daniel, aged about

twelve, and Isaiah, aged about seven, and, in presence of the master,

informed the said Jane that she was free by the laws of Pennsylvania; upon

which she expressed her desire to have her freedom, and finally, with her

children, left the boat of her own free will and accord, and without any

coercion or compulsion of any kind; and having seen her in possession of

her liberty, with her children, your petitioner returned to his place of

business, and has never since seen the said Jane, Daniel and Isaiah, or

either of them; nor does he know where they are, nor has he had any

connection of any kind with the subject.

Your petitioner used no violence whatever, except simply holding back

Colonel Wheeler, their former master, when he attempted by force to

prevent the said Jane from leaving the boat. Some half dozen negroes,

employed, as your petitioner is informed, as porters and otherwise, at the

wharf and in the immediate neighborhood, of their own accord and without

any invitation of the petitioner, but probably observing or understanding

the state of affairs, followed the petitioner when he went on board the

boat. An allegation has been made that they were guilty of violence and

disorder in the transaction. Your petitioner observed no acts of violence

committed by them, nor any other disorder than the natural expression of

some feeling at the attempt of Colonel Wheeler to detain the woman by

force; that there was not any violence or disorder amounting to a breach

of the peace is also fairly to be inferred from the fact that two police

officers were present, who were subsequently examined as witnesses, and

stated that they did not see anything requiring or justifying their

interference to preserve the peace. And your petitioner desires to state

explicitly that he had no preconcert or connection of any kind with them

or with their conduct, and considers that he is in no way responsible

therefor. Your petitioner gave to Colonel Wheeler, at the time, his name

and address, with the assurance that he would be responsible if he had

injured any right which he had; fully believing at the time, as he does

still believe, that he had committed no injury whatever to any right of

Colonel Wheeler.

On the night of the same day your petitioner was obliged to leave the city

to attend an election of the Atlantic and Ohio Telegraph Company, at

Harrisburg, and returned to Philadelphia on Friday, the 20th of July,

between one and two o'clock, A. M. Upon his return, an _alias_ writ of

_habeas corpus_ was handed to him, issued from the district court of the

United States for the eastern district of Pennsylvania, upon the petition

of the said John H. Wheeler, commanding him that the bodies of the said

Jane, Daniel and Isaiah he should have before the Hon. John K. Kane, judge

of the said district court, forthwith. To the said writ your petitioner

the same day, viz., the 20th day of July last past, made return, that the

said Jane, Daniel and Isaiah, or by whatever name they may be called, nor

either of them, were not then, nor at the time of issuing said writ, or

the original writ, or at any other time, in the custody, power, or

possession of, nor confined nor restrained of their liberty, by your

petitioner; therefore he could not have the bodies of the said Jane,

Daniel and Isaiah before the said judge, as by the said writ he was

commanded.

Whereupon and afterwards, to wit: on the 27th day of July aforesaid, it

was ordered and adjudged by the court that your petitioner be committed to

the custody of the marshal, without bail or mainprize, as for a contempt

in refusing to make return to a writ of _habeas corpus_ theretofore issued

against him at the instance of Mr. John H. Wheeler; all which appears by

the record and proceedings in the said case, which your petitioner begs

leave to produce, and a copy of an exemplification of which is annexed to

this petition. Thereupon, on the same day, a warrant was issued,

commanding that the marshal of the United States, in and for the eastern

district of Pennsylvania, forthwith take into custody the body of your

petitioner, for a contempt of the honorable the judge of the said district

court, in refusing to answer to the said writ of _habeas corpus_,

theretofore awarded against him, the said petitioner, at the relation of

Mr. John H. Wheeler, a copy of which is hereto annexed, and also a

warrant, by and from the marshal of the United States, to the keeper of

the Moyamensing prison, a copy of which is also hereto annexed; under

which warrants your petitioner was committed to the said prison, and is

now there detained, without bail or mainprize.

Notwithstanding the record is silent on the subject, your petitioner

thinks it proper to state that, on the return of the writ of _habeas

corpus_, the judge allowed the relator to traverse the said return by

parol, under which permission the relator gave his own testimony, in which

he stated that he held the said Jane, Daniel and Isaiah as slaves, under

the law of Virginia, and had voluntarily brought them with him by railroad

from the city of Baltimore to the city of Philadelphia, where he had been

accidentally detained at Bloodgood's hotel about three hours; and certain

other witnesses were examined. From the testimony thus given, though not

at all warranted by it or by the facts, the said judge decided that your

petitioner had been concerned in a forcible abduction of the said Jane,

Daniel and Isaiah, against their will and consent, upon the deck of the

said steamboat, but admitted that your petitioner took no personally

active part in such supposed abduction after he had left the deck.

The hearing took place on the morning of Friday, the 20th of July, at ten

o'clock, your petitioner having had the first knowledge of the existence

of any writ of _habeas corpus_ between one and two o'clock on the same

morning. Under these circumstances, before the said testimony was gone

into and afterwards, the counsel of your petitioner asked for time, until

the next morning, for consultation and preparation for the argument of

the questions which might arise in the case, which applications were

refused by the court, and the hearing went on, and closed on the same

morning between twelve and one o'clock.

On Tuesday, the 31st of July, 1855, your petitioner presented to the Hon.

Chief Justice of this court a petition for a _habeas corpus_, which was

refused.

Inasmuch as your petitioner is thus deprived of his liberty for an

indefinite time, and possibly for his life, as he believes, illegally;

inasmuch as he is a native citizen of Pennsylvania, and claims that he has

a right to the protection of the commonwealth, and to have recourse to her

courts for enlargement and redress; he begs leave respectfully to state

some of the grounds on which he conceives that he is entitled to the

relief which he now prays.

Whatever may be the view of the court as to the probability of his

discharge on a hearing, your petitioner respectfully represents that he is

clearly entitled to have a writ of _habeas corpus_ granted, and to be

thereupon brought before the court. Upon this subject the Pennsylvania

_habeas corpus_ act is imperative. Indeed, as the question of the

sufficiency of the cause of his detention directly concerns his personal

liberty, any law which should fail to secure to him the right of being

personally present at its argument and decision, would be frightfully

inconsistent with the principles of the common law, the provisions of our

Bill of Rights, and the very basis of our government.

It is believed that no case, prior to that of your petitioner, is reported

in Pennsylvania, of a refusal of this writ to a party restrained of his

liberty, except the case of _Ex parte Lawrence_, 5 Binn. 304, in which it

was decided that it was not obligatory on the court to issue a second writ

of _habeas corpus_ where the case had been already heard on the same

evidence upon a first writ of _habeas corpus_ granted by another court of

the petitioner's own selection: in other words, that the statutory right

to the writ was exhausted by the impetration and hearing of the first

writ, and that the granting of a second writ was at the discretion of the

court. This case, therefore, appears to confirm strongly the position of

your petitioner, that he is absolutely entitled at law to the writ for

which he now prays.

On the hearing there will be endeavored to be established on behalf of

your petitioner, on abundant grounds of reason and authority, the

following propositions, viz.:--

1. That it is the right and duty of the courts, and especially of the

supreme court of this commonwealth, to relieve any citizen of the same

from illegal imprisonment.

2. That imprisonment under an order of a court or judge not having

jurisdiction over the subject matter, and whose order is therefore void,

is an illegal imprisonment.

3. That the party subjected to such imprisonment has a right to be

relieved from it on _habeas corpus_, whether he did or did not make the

objection of the want of jurisdiction before the court or judge inflicting

such imprisonment; and that if he did not make such objection, it is

immaterial whether he were prevented from making it by ignorance of the

law, or by the want of extraordinary presence of mind, or by whatever

other cause.

4. That the courts and judges of the United States are courts and judges

of limited jurisdiction, created by a government of enumerated powers, and

in proceedings before them the records must show the case to be within

their jurisdiction, otherwise they can have none.

5. That if the record of any proceeding before them show affirmatively

that the case was clearly without their jurisdiction, there can no

presumption of fact be raised against such record for the purpose of

validating their jurisdiction.

6. That no writ of _habeas corpus_ can be issued to produce the body of a

person not in custody under legal process, unless it be issued in behalf

and with the consent of said person.

7. That at common law, the return to a writ of _habeas corpus_, if it be

an unevasive, full and complete, is conclusive, and cannot be traversed.

8. That a person held as a slave under the law of one state, and

voluntarily carried by his owner for any purpose into another state, is

not a fugitive from labor or service within the true intent and meaning of

the constitution of the United States, but is subject to the laws of the

state into which he has been thus carried; and that by the law of

Pennsylvania a slave so brought into this state, whether for the purpose

of passing through the same or otherwise, is free.

9. That the district court of the United States has no jurisdiction

whatever over the question of freedom or slavery of such person, or of an

alleged abduction of him, nor any jurisdiction to award a writ of _habeas

corpus_ commanding an alleged abductor, or any citizen by whom he may be

assumed to be detained, to produce him.

10. That in case of a fugitive from service or labor from another state,

the district court of the United States has jurisdiction to issue a

warrant for the apprehension of such fugitive, and in case he be rescued

and abducted from his claimant, so proceed by indictment and trial by jury

against such abductor, and on conviction to punish him by limited fine and

imprisonment; but even in the case of a fugitive slave, said court nor

the judge thereof has no jurisdiction to issue a writ of _habeas corpus_,

commanding the alleged abductor to produce such fugitive, or to enforce a

return of such writ, or allow a traverse of the return thereof if made, or

upon such traverse in effect convict the respondent, without indictment or

trial by jury of such abduction, and thereupon punish him therefor by

unlimited imprisonment in the name of a commitment, as for a contempt in

refusing to return such writ of _habeas corpus_.

11. That generally it is true that one court will not go behind a

commitment by another court for contempt; but that this is only where the

committing court has jurisdiction of the subject matter; and your

petitioner submits that when the circumstances of the supposed contempt

are set forth upon the record of commitment, and it further appears

thereupon that the whole proceedings were _coram non judice_, and that for

that and other reasons the commitment was arbitrary, illegal and void, it

is the right and duty of a court of competent jurisdiction, by writ of

_habeas corpus_, to relieve a citizen from imprisonment under such void

commitment.

12. That neither the district court of the United States nor the judge

thereof had any shadow or color of jurisdiction to award the writ of

_habeas corpus_ directed to your petitioner, commanding him to produce the

bodies of Jane, Daniel, and Isaiah, and that such writ was void; that your

petitioner was in no wise bound to make return thereto; that the return

which he did make thereto was unevasive, full, and complete, and was

conclusive, and not traversable; that the commitment of your petitioner as

for a contempt in refusing to return said writ is arbitrary, illegal, and

utterly null and void; that the whole proceedings, including the

commitment for contempt, were absolutely _coram non judice_.

13. That in such oppression of one of her citizens, a subordinate judge of

the United States has usurped upon the authority, violated the peace and

derogated from the sovereign dignity of the commonwealth of Pennsylvania;

that all are hurt in the person of your petitioner, and that he is

justified in looking with confidence to the authorities of his native

state to vindicate her rights by restoring his liberty.

To be relieved, therefore, from the imprisonment aforesaid, your

petitioner now applies, praying that a writ of _habeas corpus_ may be

issued, according to the act of Assembly in such case made and provided,

directed to Charles Hortz, the said keeper of said prison, commanding him

to bring before your honorable court the body of your petitioner, to do

and abide such order as your honorable court may direct.

And your petitioner will ever pray, &c.

PASSMORE WILLIAMSON.

_Moyamensing Prison, August 9, 1855._

No. II.

_The Opinion and Decision of Judge Kane, referred to in the foregoing

petition._

_The U. S. A. ex. rel. Wheeler_ agt. _Passmore Williamson_--Sur. _Habeas

Corpus_, 27th July, 1855.--Colonel John H. Wheeler, of North Carolina, the

United States Minister to Nicaragua, was on board a steamboat at one of

the Delaware wharves, on his way from Washington to embark at New York for

his post of duty. Three slaves belonging to him were sitting at his side

on the upper deck.

Just as the last signal bell was ringing, Passmore Williamson came up to

the party--declared to the slaves that they were free--and forcibly

pressing Mr. Wheeler aside, urged them to go ashore. He was followed by

some dozen or twenty negroes, who, by muscular strength, carried the

slaves to the adjoining pier; two of the slaves at least, if not all

three, struggling to release themselves, and protesting their wish to

remain with their master; two of the negro mob in the meantime grasping

Colonel Wheeler by the collar, and threatening to cut his throat if he

made any resistance.

The slaves were borne along to a hackney coach that was in waiting, and

were conveyed to some place of concealment; Mr. Williamson following and

urging forward the mob; and giving his name and address to Colonel

Wheeler, with the declaration that he held himself responsible towards him

for whatever might be his legal rights; but taking no personally active

part in the abduction after he had left the deck.

I allowed a writ of _habeas corpus_ at the instance of Colonel Wheeler,

and subsequently an _alias_; and to this last Mr. Williamson made return,

that the persons named in the writ, "nor either of them, are not now nor

was at the time of issuing of the writ, or the original writ, or at any

other time, in the custody, power, or possession of the respondent, nor by

him confined or restrained: wherefore he cannot have the bodies," etc.

At the hearing I allowed the relator to traverse this return; and several

witnesses, who were asked by him, testified to the facts as I have recited

them. The District Attorney, upon this state of facts, moved for

Williamson's commitment: 1. For contempt in making a false return; 2. To

take his trial for perjury.

Mr. Williamson then took the stand to purge himself of contempt. He

admitted the facts substantially as in proof before; made it plain that he

had been an adviser of the project, and had given it his confederate

sanction throughout. He renewed his denial that he had control at any

time over the movements of the slaves, or knew their present whereabouts.

Such is the case, as it was before me on the hearing.

I cannot look upon this return otherwise than as illusory--in legal

phrase--as evasive, if not false. It sets out that the alleged prisoners

are not now, and have not been since the issue of the _habeas corpus_, in

the custody, power or possession of the respondent; and in so far, it uses

legally appropriate language for such a return. But it goes further, and

by added words, gives an interpretation to that language, essentially

variant from its legal import.

It denies that the prisoners were within his power, custody or possession,

at any time whatever. Now, the evidence of respectable, uncontradicted

witnesses, and the admission of the respondent himself, establish the fact

beyond controversy, that the prisoners were at one time within his power

and control. He was the person by whose counsel the so called rescue was

devised. He gave the directions, and hastened to the pier to stimulate and

supervise their execution. He was the spokesman and first actor after

arriving there. Of all the parties to the act of violence, he was the only

white man, the only citizen, the only individual having recognized

political rights, the only person whose social training could certainly

interpret either his own duties or the rights of others, under the

constitution of the land.

It would be futile, and worse, to argue that he who has organized and

guided, and headed a mob, to effect the abduction and imprisonment of

others--he in whose presence and by whose active influence the abduction

and imprisonment have been brought about--might excuse himself from

responsibility by the assertion that it was not his hand that made the

unlawful assault, or that he never acted as the jailer. He who unites with

others to commit a crime, shares with them all the legal liabilities that

attend on its commission. He chooses his company and adopts their acts.

This is the retributive law of all concerted crimes; and its argument

applies with peculiar force to those cases, in which redress and

prevention of wrong are sought through the writ of _habeas corpus_. This,

the great remedial process by which liberty is vindicated and restored,

tolerates no language, in the response which it calls for, that can mask a

subterfuge. The dearest interests of life, personal safety, domestic

peace, social repose, all that man can value, or that is worth living for,

are involved in this principle. The institutions of society would lose

more than half their value, and courts of justice become impotent for

protection, if the writ of _habeas corpus_ could not compel the

truth--full, direct, and unequivocal--in answer to its mandate.

It will not do to say to the man, whose wife or whose daughter has been

abducted, "I did not abduct her; she is not in my possession; I do not

detain her; inasmuch as the assault was made by the hand of my

subordinates, and I have forborne to ask where they propose consummating

the wrong."

It is clear, then, as it seems to me, that in legal acceptance the parties

whom this writ called on Mr. Williamson to produce, were at one time

within his power and control; and his answer, so far as it relates to his

power over them, makes no distinction between that time and the present. I

cannot give a different interpretation to his language from that which he

has practically given himself, and cannot regard him as denying his power

over the prisoners now, when he does not aver that he has lost the power

which he formerly had.

He has thus refused, or at least he has failed, to answer to the command

of the law. He has chosen to decide for himself upon the lawfulness as

well as the moral propriety of his act, and to withhold the ascertainment

and vindication of the rights of others from that same forum of

arbitrament on which all his own rights repose. In a word, he has put

himself in contempt of the process of this court and challenges its

action.

That action can have no alternative form. It is one too clearly defined by

ancient and honored precedent, too indispensable to the administration of

social justice and the protection of human right, and too potentially

invoked by the special exigency of the case now before the court, to

excuse even a doubt of my duty or an apology for its immediate

performance.

The cause was submitted to me by the learned counsel for the respondent,

without argument, and I have therefore found myself at some loss to

understand the grounds on which, if there be any such, they would claim

the discharge of their client. One only has occurred to me as, perhaps,

within his view; and on this I think it right to express my opinion. I

will frankly reconsider it, however, if any future aspect of the case

shall invite the review.

It is this: that the persons named in this writ as detained by the

respondent, were not legally slaves, inasmuch as they were within the

territory of Pennsylvania when they were abducted.

Waiving the inquiry whether, for the purpose of this question, they were

within the territorial jurisdiction of Pennsylvania while passing from one

state to another upon the navigable waters of the United States--a point

on which my first impressions are adverse to the argument--I have to say:

I. That I know of no statute, either of the United States, or of

Pennsylvania, or of New Jersey, the only other state that has a qualified

jurisdiction over this part of the Delaware, that authorises the forcible

abduction of any person or any thing whatsoever, without claim of

property, unless in aid of legal process.

2. That I know of no statute of Pennsylvania, which affects to divest the

rights of property of a citizen of North Carolina, acquired and asserted

under the laws of that state, because he has found it needful or

convenient to pass through the territory of Pennsylvania.

3. That I am not aware that any such statute, if such a one were shown,

could be recognized as valid in a court of the United States.

4. That it seems to me altogether unimportant whether they were slaves or

not. It would be the mockery of philanthropy to assert, that, because men

had become free, they might therefore be forcibly abducted.

I have said nothing of the motives by which the respondent has been

governed; I have nothing to do with them; they may give him support and

comfort before an infinitely higher tribunal; I do not impugn them here.

Nor do I allude, on the other hand, to those special claims upon our

hospitable courtesy which the diplomatic character of Mr. Wheeler might

seem to assert for him. I am doubtful whether the acts of Congress give to

him and his retinue, and his property, that protection as a representative

of the sovereignty of the United States, which they concede to all

sovereignties besides. Whether, under the general law of nations, he could

not ask a broader privilege than some judicial precedents might seem to

admit, is not necessarily involved in the cause before me. It is enough

that I find, as the case stands now, the plain and simple grounds of

adjudication, that Mr. Williamson has not returned truthfully and fully to

the writ of _habeas corpus_. He must, therefore, stand committed for a

contempt of the legal process of the court.

As to the second motion of the District Attorney--that which looks to a

committal for perjury--I withhold an expression of opinion in regard to

it. It is unnecessary, because Mr. Williamson being under arrest, he may

be charged at any time by the Grand Jury; and I apprehend that there may

be doubts whether the affidavit should not be regarded as extrajudicial.

Let Mr. Williamson, the respondent, be committed to the custody of the

marshal without bail or mainprize, as for a contempt of the court in

refusing to answer to the writ of _habeas corpus_, heretofore awarded

against him at the relation of Mr. Wheeler.

N. B. A motion of the prisoner's counsel for leave to amend the return was

refused, and to a question for what time the imprisonment was to be, the

judge replied--"While he remains in contempt."

No. III.

_The opinion of the Supreme Court of Pennsylvania, delivered by Judge

Black, declining to grant the petition of Passmore Williamson._

This is an application by Passmore Williamson for _habeas corpus_. He

complains that he is held in custody under a commitment of the district

court of the United States, for a contempt of that court in refusing to

obey its process. The process which he is confined for disobeying was a

_habeas corpus_ commanding him to produce the bodies of certain colored

persons claimed as slaves under the law of Virginia.

Is he entitled to the writ he has asked for? In considering what answer we

shall give to this question, we are, of course, expected to be influenced,

as in other cases, by the law and the constitution alone. The gentlemen

who appeared as counsel for the petitioner, and who argued the motion in a

way which did them great honor, pressed upon us no considerations except

those which were founded upon their _legal_ views of the subject.

It is argued with much earnestness, and no doubt with perfect sincerity,

that we are bound to allow the writ, without stopping to consider whether

the petitioner has or has not laid before us any probable cause for

supposing that he is illegally detained--that every man confined in

prison, except for treason or felony, is entitled to it _ex debito

justitiæ_--and that we cannot refuse it without a frightful violation of

the petitioner's rights, no matter how plainly it may appear on his own

showing that he is held in custody for a just cause. If this be true, the

case of _Ex parte Lawrence_, 5 Binn. 304, is not law. There the writ was

refused because the applicant had been previously heard before another

court. But if every man who applies for a _habeas corpus_ must have it as

a matter of right, and without regard to anything but the mere fact that

he demands it, then a court or a judge has no more power to refuse a

second than a first application.

Is it really true that the special application, which must be made for

every writ of _habeas corpus_, and the examination of the commitment,

which we are bound to make before it can issue, are mere hollow and

unsubstantial forms? Can it be possible that the law and the courts are so

completely under the control of their natural enemies, that every class of

offenders against the Union and the state, except traitors and felons, may

be brought before us as often as they please, though we know beforehand,

by their own admissions, that we cannot help but remand them immediately?

If these questions must be answered in the affirmative, then we are

compelled, against our will and contrary to our convictions of duty, to

wage a constant warfare against the federal tribunals by firing off writs

of _habeas corpus_ upon them all the time. The punitive justice of the

state would suffer still more seriously. The half of the Western

Penitentiary would be before us at Philadelphia, and a similar proportion

from Cherry Hill and Moyamensing would attend our sittings at Pittsburgh.

To remand them would do very little good; for a new set of writs would

bring them all back again. A sentence to solitary confinement would be a

sentence that the convict should travel for a limited term up and down the

state, in company with the officers who might have him in charge. By the

same means the inmates of the lunatic asylums might be temporarily

enlarged, much to their own detriment; and every soldier or seaman in the

service of the country could compel his commander to bring him before the

court six times a week.

But the _habeas corpus_ act has never received such a construction. It is

a writ of right, and may not be refused to one who shows a _prima facie_

case entitling him to be discharged or bailed. But he has no right to

demand it who admits that he is in legal custody for an offence not

bailable and he does make what is equivalent to such an admission when his

own application and the commitment referred to in it show that he is

lawfully detained. A complaint must be made and the cause of detainer

submitted to a judge before the writ can go. The very object and purpose

of this is to prevent it from being trifled with by those who manifestly

have no right to be set at liberty. It is like a writ of error in a

criminal case, which the court or judge is bound to allow if there be

reason to suppose that an error has been committed, and equally bound to

refuse if it be clear that the judgment must be affirmed.

We are not aware that any application to this court for a writ of _habeas

corpus_ has ever been successful where the judges, at the time of the

allowance, were satisfied that the prisoner must be remanded. The

petitioner's counsel say there is but one reported case in which it was

refused, (5 Binn. 304;) and this is urged in the argument as a reason for

supposing that in all other cases the writ was issued without examination.

But no such inference can fairly be drawn from the scarcity of judicial

decisions upon a point like this. We do not expect to find in reports so

recent as ours those long-established rules of law which the student

learns from his elementary books, and which are constantly acted upon

without being disputed.

The _habeas corpus_ is a common law writ, and has been used in England

from time immemorial, just as it is now. The statute of 31 Char. II. c. 2,

made no alteration in the practice of the courts in granting these writs.

(3 Barn. and Ald. 420 to Chitty's Reps. 207.) It merely provided that the

judges in vacation should have the power which the courts had previously

exercised in term time, (1 Chitty's Gen. Prac. 686,) and inflicted

penalties upon those who should defeat its operation. The common law upon

this subject was brought to America by the colonists; and most, if not all

of the states, have since enacted laws resembling the English statute of

Charles II. in every principal feature. The constitution of the United

States declares that "the privilege of a writ of _habeas corpus_ shall not

be suspended unless when, in cases of rebellion or invasion, the public

safety may require it." Congress has conferred upon the federal judges the

power to issue such writs according to the principles and rules regulating

it in other courts. Seeing that the same general principles of common law

on this subject prevail in England and America, and seeing also the

similarity of their statutory regulations in both countries, the decisions

of the English judges, as well as of the American courts, both state and

federal, are entitled to our fullest respect, as settling and defining our

powers and duties.

Blackstone (3 Com. 132) says the writ of _habeas corpus_ should be allowed

only when the court or judge is satisfied that the party hath probable

cause to be delivered. He gives cogent reasons why it should not be

allowed in any other case, and cites with unqualified approbation the

precedents set by Sir Edward Coke and Chief Justice Vaughan in cases where

they had refused it. Chitty lays down the rule (1 Cr. Law, 101; General

Prac. 686-7.) It seems to have been acted upon by all the judges. The writ

was refused in _Rex_ v. _Scheiner_, (1 Burr. 765,) and in the case of the

three Spanish sailors, (3 Black. Rep. 1324.) In Hobhouse's case, (2 Barn.

and Ald. 420,) it was fully settled by a unanimous court, as the true

construction of the statute, that the writ is never to be allowed, if upon

view of the commitment it be manifest that the prisoner must be remanded.

In New York, when the statute in force there was precisely like ours, (so

far I mean as this question is concerned,) it was decided by the supreme

court (5 Johns. 282) that the allowance of the writ was a matter within

the discretion of the court, depending on the grounds laid in the

application. It was refused in Huster's case, (1, 2 C. 136) and in _Ex

parte Ferguson_, (9 Johns. Rep. 139.) In addition to this we have the

opinion of Chief Justice Marshall, in Watkins's case, (3 Peters, 202) that

the writ ought not to be awarded if the court is satisfied that the

prisoner must be remanded. It was accordingly refused by the supreme

court of the United States in that case, as it had been before in

Kearney's case.

On the whole, we are thoroughly satisfied that our duty requires us to

view and examine the cause of detainer now, and to make an end of the

business at once, if it appear that we have no power to discharge him on

the return of the writ.

This prisoner, as already said, is confined on a sentence of the district

court of the United States for a contempt. A _habeas corpus_ is not a writ

of error. It cannot bring a case before us in such a manner that we can

exercise any kind of appellate jurisdiction in it. On a _habeas corpus_,

the judgment, even of a subordinate state court, cannot be disregarded,

reversed or set aside, however clearly we may perceive it to be erroneous,

and however plain it may be that we ought to reverse it if it were before

us on appeal or writ of error. We can only look at the record to see

whether a judgment exists, and have no power to say whether it is right or

wrong. It is conclusively presumed to be right until it is regularly

brought up for revision. We decided this three years ago at Sunbury, in a

case which we all thought one of much hardship. But the rule is so

familiar, so universally acknowledged, and so reasonable in itself, that

it requires only to be stated. It applies with still greater force, or at

least for stronger reasons, to the decisions of the federal courts. Over

them we have no control at all, under any circumstances, or by any process

that could be devised. Those tribunals belong to a different judicial

system from ours. They administer a different code of laws, and are

responsible to a different sovereignty. The district court of the United

States is as independent of us as we are of it--as independent as the

supreme court of the United States is of either. What the law and the

constitution have forbidden us to do directly on writ of error, we, of

course, cannot do indirectly by _habeas corpus_.

But the petitioner's counsel have put his case on the ground that the

whole proceeding against him in the district court was _coram non judice_,

null and void. It is certainly true that a void judgment may be regarded

as no judgment at all; and every judgment is void which clearly appears on

its own face to have been pronounced by a court having no jurisdiction or

authority in the subject matter. For instance, if a federal court should

convict and sentence a citizen for libel, or if a state court, having no

jurisdiction except in civil pleas, should try an indictment for a crime

and convict the party--in these cases the judgments would be wholly void.

If the petitioner can bring himself within this principle, then there is

no judgment against him; he is wrongfully imprisoned, and we must order

him to be brought out and discharged.

What is he detained for? The answer is easy and simple. The commitment

shows that he was tried, found guilty, and sentenced for _contempt of

court_, and nothing else. He is now confined in execution of that

sentence, and for no other cause. This was a distinct and substantive

offence against the authority and government of the United States. Does

any body doubt the jurisdiction of the district court to punish contempt?

Certainly not. All courts have this power, and must necessarily have it;

otherwise they could not protect themselves from insult, or enforce

obedience to their process. Without it they would be utterly powerless.

The authority to deal with an offender of this class belongs exclusively

to the court in which the offence is committed, and no other court, not

even the highest, can interfere with its exercise, either by writ of

error, mandamus, or _habeas corpus_. If the power be abused, there is no

remedy but impeachment.

The law was so held by this court in M'Laughlin's case, (5 W. & S. 275,)

and by the supreme court of the United States in Kearney's case, (7

Wharton, 38.) It was solemnly settled as part of the common law, in Brass

Crossley's case, (3 Wilson, 183,) by a court in which sat two of the

foremost jurists that England ever produced. We have not the smallest

doubt that it is the law; and we must administer it as we find it. The

only attempt ever made to disregard it was by a New York judge, (4 Johns.

Rep. 345,) who was not supported by his brethren. This attempt was

followed by all the evil and confusion which Blackstone and Kent and Story

declared to be its necessary consequences. Whoever will trace that

singular controversy to its termination will see that the chancellor and

the majority of the supreme court, though once outvoted in the Senate,

were never answered.

The Senate itself yielded to the force of the truths which the supreme

court had laid down so clearly, and the judgment of the court of errors in

Yates's case (8 Johns. 593) was overruled by the same court the year

afterward in _Yates_ v. _Lansing_, (9 Johns. Rep. 403,) which grew out of

the very same transaction, and depended on the same principles. Still

further reflection at a later period induced the Senate to join the

popular branch of the legislature in passing a statute which effectually

prevents one judge from interfering by _habeas corpus_ with the judgment

of another on a question of contempt.

These principles being settled, it follows irresistibly that the district

court of the United States had power and jurisdiction to decide what acts

constitute a contempt against it; to determine whether the petitioner had

been guilty of contempt; and to inflict upon him the punishment which in

his opinion he ought to suffer. If we fully believed the petitioner to be

innocent--if we were sure that the court which convicted him misunderstood

the facts, or misapplied the law--still we could not reëxamine the

evidence or rejudge the justice of the case, without grossly disregarding

what we know to be the law of the land. The judge of the district court

decided the question on his own constitutional responsibility. Even if he

could be shown to have acted tyrannically or corruptly, he could be called

to answer for it only in the Senate of the United States.

But the counsel for the petitioner go behind the proceeding in which he

was convicted, and argue that the sentence for contempt is void, because

the court had no jurisdiction of a certain other matter which it was

investigating, or attempting to investigate, when the contempt was

committed. We find a judgment against him in one case, and he complains

about another, in which there is no judgment. He is suffering for an

offence against the United States; and he says he is innocent of any wrong

to a particular individual. He is conclusively adjudged guilty of

contempt; and he tells us that the court had no jurisdiction to restore

Mr. Wheeler's slaves.

It must be remembered that contempt of court is a specific criminal

offence. It is punished sometimes by indictment, and sometimes in a

summary proceeding, as it was in this case. In either mode of trial the

adjudication against the offender is a conviction, and the commitment in

consequence is execution. (7 Wheat. 38.) This is well settled, and I

believe has never been doubted. Certainly the learned counsel for the

petitioner have not denied it. The contempt may be connected with some

particular cause, or it may consist in misbehavior which has a tendency to

obstruct the administration of justice generally. When it is committed in

a pending cause, the proceeding to punish it is a proceeding by itself. It

is not entitled in the cause pending, but on the criminal side. (Wall.

134.)

The record of a conviction for contempt is as distinct from the matter

under investigation, when it was committed, as an indictment for perjury

is, from the cause in which the false oath was taken. Can a person

convicted of perjury ask us to deliver him from the penitentiary, on

showing that the oath on which the perjury is assigned, was taken in a

cause of which the court had no jurisdiction? Would any judge in the

commonwealth listen to such a reason for treating the sentence as void?

If, instead of swearing falsely, he refuses to be sworn at all, and he is

convicted, not of perjury, but of contempt, the same rule applies, and

with a force precisely equal. If it be really true that no contempt can be

committed against a court while it is enquiring into matter beyond its

jurisdiction, and if the fact was so in this case, then the petitioner had

a good defence, and he ought to have made it on his trial. To make it

after conviction is too late. To make it here is to produce it before the

wrong tribunal.

Every judgment MUST be conclusive until reversed. Such is the character,

nature, and essence of all judgments. If it be not conclusive, it is not a

judgment. A court must either have power to settle a given question

finally and forever, so as to preclude all further inquiry upon it, or

else it has no power to make any decision at all. To say that a court may

determine a matter, and that another court may regard the matter afterward

as open and undetermined, is an absurdity in terms.

It is most especially necessary that convictions for contempt in our

courts should be final, conclusive, and free from reëxamination by other

courts on _habeas corpus_. If the law were not so, our judicial system

would break to pieces in a month. Courts totally unconnected with each

other would be coming in constant collision. The inferior courts would

revise all the decisions of the judges placed over and above them. A party

unwilling to be tried in this court, need only defy our authority, and if

we commit him, take out his _habeas corpus_ before an associate judge of

his own choosing, and if that judge is of opinion that we ought not to try

him, there is an end of the case.

The doctrine is so plainly against the reason of the thing, that it would

be wonderful, indeed, if any authority for it could be found in the books,

except the overruled decision of Mr. Justice Spencer of New York, already

referred to, and some efforts of the same kind to control the other courts

made by Sir Edward Coke, in the King's Bench, which are now universally

admitted to have been illegal, as well as rude and intemperate. On the

other hand, we have all the English judges, and all our own, disclaiming

their power to interfere with or control one another in this way. I will

content myself by simply referring to some of the books in which it is

established, that the conviction of contempt is a separate proceeding, and

is conclusive of every fact which might have been urged on the trial for

contempt, and among others want of jurisdiction to try the cause in which

the contempt was committed. (4 Johns. Rep. 325, _et sequ._ The opinion of

Chief Justice Kent, on pages 370 to 375. 6 Johns. 503. 9 Johns. 423. 1

Hill. 170. 5 Iredell, 190. Ib. 153. 9 Sandf. 724. 1 Carter, 160. 1 Blackf.

166. 25 Miss. 836. 2 Wheeler's Criminal Cases, p. 1. 14 Ad. and Ellis,

556.) These cases will speak for themselves; but I may remark as to the

last one, that the very same objection was made there and here. The party

was convicted of contempt in not obeying a decree. He claimed his

discharge on _habeas corpus_ because the chancellor had no jurisdiction to

make the decree, being interested in the cause himself. But the Court of

Queen's Bench held that if that was a defence it should have been made on

the trial for contempt, and the conviction was conclusive. We cannot

choose but hold the same rule here. Any other would be a violation of the

law which is established and sustained by all authority and all reason.

But certainly the want of jurisdiction alleged in this case would not even

have been a defence on the trial. The proposition that a court is

powerless to punish for disorderly conduct, or disobedience of its process

in a case which it ought ultimately to dismiss, for want of jurisdiction,

is not only unsupported by judicial authority, but we think it is new even

as an argument at the bar. We, ourselves, have heard many cases through

and through before we became convinced that it was our duty to remit the

parties to another tribunal. But we never thought that our process could

be defied in such cases more than in others.

There are some proceedings in which the want of jurisdiction would be seen

at the first blush; but there are others in which the court must inquire

into all the facts before it can possibly know whether it has jurisdiction

or not. Any one who obstructs or baffles a judicial investigation for that

purpose, is unquestionably guilty of a crime, for which he may, and ought

to be tried, convicted, and punished. Suppose a local action to be brought

in the wrong county; this is a defence to the action, but a defence which

must be made out like any other. While it is pending, neither a party, nor

an officer, nor any other person, can safely insult the court, or resist

its order. The court may not have power to decide upon the merits of the

case; but it has undoubted power to try whether the wrong was done within

its jurisdiction or not. Suppose Mr. Williamson to be called before the

circuit court of the United States as a witness in a trial for murder,

alleged to be committed on the high seas. Can he refuse to be sworn, and

at his trial for contempt, justify himself on the ground that the murder

was committed within the limits of a State, and thereby triable only in a

State court? If he can, he can justify perjury for the same reason. But

such a defence for either crime, has never been heard of since the

beginning of the world. Much less can it be shown, after conviction, as a

ground for declaring the sentence void.

The wish which the petitioner is convicted of disobeying was legal on its

face. It enjoined upon him a simple duty, which he ought to have

understood and performed without hesitation. That he did not do so is a

fact conclusively established by the adjudication which the court made

upon it. I say the wish was legal, because the act of Congress gives to

all the courts of the United States the power "to issue writs of _habeas

corpus_, when necessary for the exercise of their jurisdiction, and

agreeable to the principles and usages of law." Chief Justice Marshall

decided in Burr's trial, that the principles and usages referred to in

this act were those of the common law. A part of the jurisdiction of the

district court consists in restoring fugitive slaves; and the _habeas

corpus_ may be used in aid of it when necessary. It was awarded here upon

the application of a person who complained that his slaves were detained

from him. Unless they were fugitive slaves they could not be slaves at

all, according to the petitioner's own doctrine, and if the judge took

that view of the subject, he was bound to award the writ. If the persons

mentioned on it had turned out on the hearing to be fugitives from labor,

the duty of the district judge to restore them, or his power to bring them

before him on a _habeas corpus_, would have been disputed by none except

the very few who think that the constitution and law on that subject ought

not to be obeyed. The duty of the court to enquire into the facts on which

its jurisdiction depends is as plain as its duty not to exceed it when it

is ascertained. But Mr. Williamson stopped the investigation _in limine_;

and the consequence is, that every thing in the case remains unsettled,

whether the persons named in the writ were slaves or free.

Whether Mr. Wheeler was the owner of them--whether they were unlawfully

taken from him--whether the court had jurisdiction to restore them--all

these points are left open for want of a proper return. It is not our

business to say how they ought to be decided; but we doubt not that the

learned and upright magistrate who presides in the district court would

have decided them as rightly as any judge in all the country. Mr.

Williamson had no right to arrest the inquiry because he supposed that an

error would be committed on the question of jurisdiction, or any other

question. If the assertions which his counsel now make on the law and the

facts be correct, he prevented an adjudication in favor of his proteges,

and thus did them a wrong, which is probably a greater offence in his own

eyes than any thing he could do against Mr. Wheeler's rights. There is no

reason to believe that any trouble whatever would have come out of the

case, if he had made a true, full, and special return of all the facts;

for then the rights of all parties, black and white, could have been

settled, or the matter dismissed for want of jurisdiction, if the law so

required.

It is argued that the court had no jurisdiction, because it was not

averred that the slaves were fugitives, but merely that they owed service

by the laws of Virginia. Conceding, for the argument's sake, that this was

the only ground on which the court could have interfered--conceding that

it is not substantially alleged in the petition of Mr. Wheeler--the

proceedings were, nevertheless, not void for that reason.

The federal tribunals, though courts of limited jurisdiction, are not

_inferior_ courts. Their judgments, until reversed by the proper appellate

court, are valid and conclusive upon the parties, though the jurisdiction

be not alleged in the pleadings nor on any part of the record. (10

Wheaton, 192.) Even if this were not settled and clear law, it would still

be certain that the fact on which jurisdiction depends need not be stated

_in the process_. The want of such a statement in the body of the _habeas

corpus_, or in the petition on which it was awarded, did not give Mr.

Williamson a right to treat it with contempt. If it did, then the courts

of the United States must get out the ground of their jurisdiction in

every subpoena for a witness; and a defective or untrue averment will

authorize the witness to be as contumacious as he sees fit.

But all that was said in the argument about the petition, the writ, and

the facts which were proved or could be proved, refers to the _evidence_

in which the conviction took place. This has passed _in rem judicatam_. We

cannot go one step behind the conviction itself. We could not reverse it

if there had been no evidence at all. We have no more authority in law to

come between the prisoner and the court to free him from a sentence like

this, than we would have to countermand an order issued by the

commander-in-chief to the United States army.

We have no authority, jurisdiction, or power to decide any thing here

except the simple fact that the district court had power to punish for

contempt, a person who disobeys its process--that the petitioner is

convicted of such contempt--and that the conviction is conclusive upon us.

The jurisdiction of the court on the case which had been before it, and

every thing else which preceded the conviction, are out of our reach, and

they are not examinable by us--and, of course, not now intended to be

decided.

There may be cases in which we ought to check usurpation of power by the

Federal courts. If one of them would presume, upon any pretence whatever,

to take out of our hands a prisoner convicted of contempt in this court,

we would resist it by all proper and legal means. What we would not permit

them to do against us we will not do against them.

We must maintain the rights of the State and its courts, for to them

alone can the people look for a competent administration of their domestic

concerns; but we will do nothing to impair the constitutional vigor of the

general government, which is "the sheet anchor of our peace at home and

our safety abroad."

Some complaint was made in the argument about the sentence being for an

indefinite time. If this were erroneous it would not avail here, since we

have as little power to revise the judgment for that reason as for any

other. But it is not illegal nor contrary to the usual rule in such cases.

It means commitment until the party shall make proper submission. (3 Lord

Raymond, 1108. 4 Johns. Rep. 375.)

The law will not bargain with anybody to let its courts be defied for a

specific term of imprisonment. There are many persons who would gladly

purchase the honors of martyrdom in a popular cause at almost any given

price, while others are deterred by a mere show of punishment. Each is

detained until he finds himself willing to conform. This is merciful to

the submissive and not too severe upon the refractory. The petitioner,

therefore, carries the key of his prison in his own pocket. He can come

out when he will, by making terms with the court that sent him there. But

if he choose to struggle for a triumph--if nothing will content him but a

clean victory or a clean defeat--he cannot expect us to aid him. Our

duties are of a widely different kind. They consist in discouraging as

much as in us lies all such contests with the legal authorities of the

country. _The writ of habeas corpus is refused._

No. IV.

_The dissenting opinion of Judge Knox in favor of granting the petition._

KNOX, J. I do not concur in the opinion of the majority of this court

refusing the writ of _habeas corpus_, and shall state the reasons why, in

my judgment, the writ should be granted.

This application was made to the court whilst holding a special session at

Bedford, on the 13th day of August; and upon an intimation from the

counsel that in case the court had any difficulty upon the question of

awarding the writ, they would like to be heard, Thursday, the 16th of

August, was fixed for the hearing. On that day an argument was made by

Messrs. Meredith 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 in favor of awarding the _habeas corpus_, greatly preferring that the

right of the petitioner to his discharge should be determined upon the

return of the writ. If this course had been adopted, we should have had

the views of counsel in opposition to the discharge, and, moreover, if

necessary, we could, after the return, have examined into the facts of the

case.

I am in favor of granting this writ, first, because I believe the

petitioner has the right to demand it at our hands. From the time of Magna

Charta the writ of _habeas corpus_ has been considered a writ of right,

which every person is entitled to _ex debito justiciæ_. "But the benefit

of it," says Chancellor Kent, "was in a great degree eluded in England

prior to the statute of Charles II., as the judges only awarded it in term

time, and they assumed a discretionary power of awarding or refusing it."

2 Kent Commentaries, 26. And Bacon says, "Notwithstanding the writ of

_habeas corpus_ be a writ of right, and what the subject is entitled to,

yet the provision of the law herein being in a great measure eluded by the

judge as being only enabled to award it in term time, as also by an

imagined notion of the judges that they had a discretionary power of

granting or refusing it," the act of 31 Charles II. was made for remedy

thereof.

I am aware that both in England and this country, since the passage of the

statute of Charles II., it has been held that where it clearly appeared

that the prisoner must be remanded, it was improper to grant the writ; but

I know of no such construction upon our act of 18th February, 1785. The

people of the United States have ever regarded the privileges of the

_habeas corpus_ as a most invaluable right, to secure which, an

interdiction against its suspension, "unless when in cases of rebellion or

invasion the public safety may require it," is inserted in the organic law

of the Union; and in addition to our act of 1785, which is broader and

more comprehensive than the English statute, a provision in terms like

that in the constitution of the United States is to be found in the

constitution of this State.

It is difficult to conceive how words could be more imperative in their

character than those to be found in our statute of 1785. The judges named

are authorized and required, either in vacation or term time, upon the due

application of any person committed or detained for any criminal or

supposed criminal matter, except for treason or felony, or confined or

restrained of his or her liberty, under any color or pretence whatsoever,

to award and grant a _habeas corpus_, directed to the person or persons in

whose custody the prisoner is detained, returnable immediately. And the

refusal or neglect to grant the writ required by the act to be granted,

renders the judge so neglecting or refusing 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 tolerably

plain that where, in express words, a certain thing is directed to be

done, to which is added a penalty for not doing it, no discretion is to be

used in obeying the mandate.

The English statute confined the penalty to a neglect or refusal to grant

the writ in vacation time, and from this a discretionary power to refuse

it in term time was inferred, but our act of Assembly does not limit the

penalty to a refusal in vacation, but is sufficiently comprehensive to

embrace neglect or refusal in vacation or in term time.

I have looked in vain through the numerous cases reported in this State to

find that the writ was ever denied to one whose application was in due

form, and whose case was within the purview of the act of Assembly.

In _Respublica_ v. _Arnold_, 3 Yates, 263, the writ was refused because

the petitioner was not restrained of his liberty, and therefore not within

the terms of the statute; and in _Ex parte Lawrence_, 5 Binney, 304, 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 an examination of the

numerous cases where the writ has been allowed, I believe it can be safely

affirmed that the denial of the writ in a case like the present is without

a precedent, and contrary to the uniform practice of the bench, and

against the universal understanding of the profession and the people; but

what is worse still, it appears to me to be in direct violation of the law

itself.

It may be said that the law never requires a useless thing to be done.

Grant it. But how can it be determined to be useless until the case is

heard? Whether there is ground for the writ is to be determined according

to law, and the law requires that the determination should follow, not

precede the return.

An application was made to the chief justice of this court for a writ of

_habeas corpus_ previous to the application now being considered. The writ

was refused, and it was stated in the opinion that the counsel for the

petitioner waived the right to the writ, or did not desire it to be

issued, if the chief justice should be of the opinion that there was not

sufficient cause set forth in the petition for the prisoner's discharge.

But this can in nowise prejudice the petitioner's right to the writ which

he now demands. Even had the writ been awarded, and the case heard, and

the discharge refused, it would not be within the decision in _Ex parte

Lawrence_, for there the hearing was before a court in term time, upon a

full examination of the case upon evidence adduced, and not at chambers;

but the more obvious distinction here is that the writ has 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 him here.

Now, while I aver that the writ of _habeas corpus, ad subjiciendum_, is a

writ of right, I do not 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 upon its face that the petitioner is entitled to relief. It may

be refused if, upon the application itself, it appears 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

petitioner's liberty, under an order from a judge beyond his 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. Whether the allegation of the want

of jurisdiction is true or not, is determinable only upon the return of

the writ.

If one has averred in his petition what, if true, would afford him relief,

it is his constitutional 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 the writ is

virtually to condemn him unheard; and as I can see nothing in this case

which requires at our hands an extraordinary resistance against the prayer

of the petitioner to show that his imprisonment is illegal, that he is

deprived of his liberty without due course of law. I am in favor of

treating him as like cases have uniformly been treated in this

commonwealth, by awarding the writ of _habeas corpus_, and reserving the

inquiry as to his right to be discharged until the return of the writ; but

as a majority of my brethren have come to a different conclusion, we must

inquire next into the right of the applicant to be discharged as the case

is now presented.

I suppose it to be undoubted law that in a case where a court acting

beyond its jurisdiction has committed a person to prison, the prisoner,

under our _habeas corpus_ act, is entitled to his discharge, and that it

makes no difference whether the court thus transcending its jurisdiction

assumes to act as a court of the Union or of the commonwealth. If a

principle, apparently so just and clear, needs for its support adjudicated

cases, reference can be had to _Wise_ v. _Withers_, 3 Cranch, 331; 1

Peters, Condensed Rep. 552; _Rose_ v. _Hinely_, 4 Cranch, 241, 268; _Den_

v. _Harden_, 1 Paine, Rep. 55, 58 and 59; 3 Cranch, 448; _Bollman_ v.

_Swartout_, 4 Cranch, 75; Kearney's case, 7 Wheaton, 38; _Kemp_ v.

_Kennedy_, 1 Peters, C. C. Rep. 36; _Wickes_ v. _Calk_, 5 Har. and J. 42;

_Griffith_ v. _Frazier_, 8 Cranch, 9; _Com._ v. _Smith_, Sup. Court

Penn., 1 Wharton Digest, 321; _Com. ex relatione Lockington_ v. _The

Jailer_, &c., Sup. Court manuscript, 1814, Wharton's Digest, vol. i. 321;

_Albec_ v. _Ward_, 8 Mass. 86.

Some of these cases 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 _habeas corpus_; and others, that it may

issue from a state court to discharge a prisoner committed under process

from a federal court, if it clearly appears that the federal court had no

jurisdiction of the case; altogether, they establish the point that the

petitioner is entitled to relief, if he is restrained of his liberty by a

court acting beyond its jurisdiction.

Neither do I conceive it to be correct to say that the applicant cannot

now question the jurisdiction of the judge of the district court because

he did not challenge it on 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 so the question of jurisdiction; this cannot be given

by express consent, much less will acquiescence for a time waive an

objection to it. (See U. S. Digest, vol. i. p. 639, Pl. 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 on the first

opportunity forever closed his mouth from denying the power of the court

to deprive him of his liberty. I deny that the law is a trap for the feet

of the unwary. Where personal liberty is concerned, it is a shield for the

protection of the citizen, and it will answer his call even if made after

the prison door has been closed on 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 the eastern district of

the United States power to issue the writ of _habeas corpus_, directed to

Passmore Williamson, upon the petition of John H. Wheeler? The power of

that court to commit for a contempt is not denied, and I understand it to

be conceded as a general rule by the petitioner's counsel, that one court

will not reëxamine a commitment for contempt by another court of competent

jurisdiction; but if the court has no authority to issue the writ, the

respondent was not bound to answer it, and his neglect or refusal to do

so would not authorize his punishment for contempt.

The first position which I shall take in considering the question of

jurisdiction, is that the courts of the United States have no power to

award the writ of _habeas corpus_ except such as is given to them by the

acts of Congress.

"Courts which originate in the common law possess a jurisdiction which

must be regulated by the common law; but the courts which are created by

written law, and whose jurisdiction 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 given by written law." _Ex parte

Swartout_, 4 Cranch, 75. _Ex parte Barre_, 2 Howard, 65. The power of the

United States to issue writs of _habeas corpus_ is derived either from the

fourteenth section of the act of 24th September, 1789, or from the seventh

section of the act of March 2, 1833.

The section from the act of 1789 provides that "all the courts of the

United States may issue writs of _scire facias_, _habeas corpus_, and all

other writs not especially provided for by statute, which may be necessary

for the exercise of their respective jurisdictions, and agreeable to the

principles and usages of law. And either of the justices of the supreme

court, as well as the judges of the district courts, may grant writs of

_habeas_, for the purpose of inquiry into the cause of commitment; but

writs of _habeas 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 to be brought into court to testify." The seventh section

of the act of 2d March, 1833, authorizes "either of the justices of the

supreme court, or judge of any district court of the United States, in

addition, to the authority already conferred by law, to grant writs of

_habeas corpus_ in all cases of a prisoner or prisoners in jail or

confinement, where he or they shall be committed or confined on or by

authority of law, for any act 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

notwithstanding."

Now, unless the writ of _habeas corpus_ issued by the judge of the

district court was necessary for the exercise of the jurisdiction of the

said court, or was to inquire into a commitment under, or by color of the

authority of the United States, or to relieve some one imprisoned for an

act done, or omitted to be done, in pursuance of a law of the United

States, the district court had no power to issue it, and a commitment for

contempt in refusing to answer it is an illegal imprisonment, which,

under our _habeas corpus_ act, we are imperatively required 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 States, or to relieve from imprisonment for an act done or omitted

to be done in pursuance of a law of the United States, and therefore we

may confine our inquiry solely to the question whether it was necessary

for the exercise of any jurisdiction given to the district court of the

United States for the eastern district of Pennsylvania.

This brings us to the question of the jurisdiction of the courts of the

United States, and more particularly that of the district court. And here,

without desiring, or intending to discuss at large the nature and powers

of the federal government, it is proper to repeat what has been so often

said, and what has never been denied, that it is a government of

enumerated powers, delegated to it by the several States, or the people

thereof, without capacity to enlarge or extend the powers so delegated and

enumerated, and that its courts of justice are courts of 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 government, for that

alone can be rightly exercised by its courts.

"The judicial power" (says the second section of the third article) "shall

extend to all cases in law and equity arising under this constitution, the

laws of the United States, and treaties made, or which shall be made under

their authority, to all cases affecting embassadors, other public

ministers and consuls, to all cases of admiralty and maritime

jurisdiction, to controversies to which the United States shall be a

party, to controversies between two or more States, between a State and

citizen of another State, between citizens of different States, between

citizens of the same State, claiming lands under grants of different

States, and between a State, or the citizen thereof, and foreign States,

citizens or subjects."

The amendments subsequently made to this article have no bearing upon the

question under consideration, nor is it necessary to examine the various

acts of Congress conferring jurisdiction upon the courts of the United

States, for no act of Congress can be found extending the jurisdiction

beyond what is given by the constitution, so far as relates to the

question we are now considering. And if such an act should be passed it

would be in direct conflict with the tenth amended article of the

constitution, which declares that "the powers not delegated to the United

States by the constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people."

If this case can be brought within the judicial power of the courts of the

United States, it must be either--

1st. Because it arises under the Constitution or the laws of the United

States.

Or, 2d. Because it is a controversy between citizens of different States,

for it is very plain that there is no other clause in the Constitution

which, by the most latitudinarian construction, could be made to include

it.

Did it arise under the Constitution or the laws of the United States? In

order 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

presented his petition to the Hon. J. K. Kane, judge of the district court

for the eastern 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; such persons being respectively named Jane, aged about

thirty-five years, Daniel, aged about twelve years, and Isaiah, aged about

seven years, persons of color; and that they were detained from his

possession by Passmore 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, commanding Passmore Williamson to bring the

bodies of the said Jane, Daniel, and Isaiah, before the judge of the

district court, forthwith. To this writ, Passmore Williamson made a

return, verified by his affirmation, 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 possession of, nor confined, 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. 1855. "Whereupon,

afterwards, to wit: On 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 Williamson be committed to the custody of the

marshal, without bail or mainprize, as for a contempt in refusing to make

return to the writ of _habeas corpus_, heretofore issued against him, at

the instance of Mr. John H. Wheeler."

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