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."