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.”

Such is the record. Now, while I am willing to admit that the want of jurisdiction should be made clear, I deny that in a case under our habeas corpus act the party averring want of jurisdiction cannot go behind the record to establish its non-existence. Jurisdiction, or the absence thereof, is a mixed question of law and fact. It is the province of fact to ascertain what the case is, and of law to determine whether the jurisdiction attaches to the case so ascertained. “And” says the second section of our act of 1785, “that the said judge or justice may, according to the intent and meaning of this act, be enabled, by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded, or discharged, the return may, before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained.”

This provision applies to cases of commitment or detainer for any criminal or supposed criminal matter, but the fourteenth section, which applies to cases of restraint of liberty “under any color or pretence whatever,” provides that “the court, judge, or justice, before whom the party so confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand, or discharge the party so brought, as to justice shall appertain.”

The right and duty of the supreme court of a State to protect a citizen thereof from imprisonment by a judge of a United States court having no jurisdiction over the cause of complaint, is so manifest and so essentially necessary under our dual system of government, that I cannot believe that this right will ever be abandoned or the duty avoided; but, if we concede, what appears to be the law of the later cases in the Federal courts, that the jurisdiction need not appear affirmatively, and add to it that the want of jurisdiction shall not be proved by evidence outside of the record, we do virtually deny to the people of the State the right to question the validity of an order by a Federal judge consigning them to the walls of a prison “without bail or mainprize.”

What a mockery to say to one restrained of his liberty, “True, if the judge or court under whose order you are in prison acted without jurisdiction, you are entitled to be discharged, but the burden is upon you to show that there was no jurisdiction, and in showing this we will not permit you to go beyond the record made up by the party against whom you complain!”

As the petitioner would be legally entitled, upon the return of the writ, to establish the truth of the facts set forth in his petition, so far as they bear upon the question of jurisdiction, we are bound before the return to assume that the facts are true as stated, and so taking them, the case is this:

John H. Wheeler voluntarily brought into the State of Pennsylvania three persons of color, held by him in the State of Virginia as slaves, with the intention of passing through this State. While on board of a steamboat near Walnut Street wharf, in the city of Philadelphia, the petitioner, Passmore Williamson, informed the mother that she was free by the laws of Pennsylvania, who, in the language of the petition, “expressed her desire to have her freedom; and finally, with her children, left the boat of her own free will and accord, and without coercion or compulsion of any kind; and having seen her in possession of her liberty with her children, your petitioner (says the petition) returned to his place of business, and has never 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.”

One owning slaves in a slave State voluntarily brings them into a free State, with the intention of passing through the free State. While there, upon being told that they are free, the slaves leave their master. Can a judge of the district court of the United States compel their restoration through the medium of a writ of habeas corpus directed to the person by whom they were informed of their freedom? Or, in other words, is it a case arising under the constitution and laws of the United States?

What article or section of the constitution has any bearing upon the right of a master to pass through a free State with his slave or slaves? Or, when has Congress ever attempted to legislate upon this question? I most unhesitatingly aver that neither in the constitution of the United States nor in the acts of Congress can there be found a sentence which has any effect upon this question whatever. It is a question to be decided by the law of the State where the person is for the time being, and that law must be determined by the judges of the State, who have sworn to support the constitution of the State as well as that of the United States—an oath which is never taken by a Federal judge.

Upon this question of jurisdiction it is wholly immaterial whether by the law of Pennsylvania a slaveholder has or has not the right of passing through our State with his slaves. If he has the right, it is not in virtue of the constitution or laws of the United States, but by the law of the State, and if no such right exists, it is because the State law has forbidden it, or has failed to recognize it. It is for the State alone to legislate upon this subject, and there is no power on earth to call her to an account for her acts of omission and commission in this behalf.

If this case, by any reasonable construction, be brought within the terms of the third clause of the second section of article four of the constitution of the United States, jurisdiction might be claimed for the federal courts, as then it would be a case arising under the constitution of the United States, although I believe the writ of habeas corpus is no part of the machinery designed by Congress for the rendition of fugitives from labor.

“No person (says the clause above mentioned) held to service or labor in one State under the laws thereof escaping into another shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” By reference to the debates in the convention, it will be seen that this clause was inserted at the request of delegates from southern states, and on the declaration that in the absence of a constitutional provision the right of reclamation would not exist unless given by state authority. If it had been intended to cover the right of transit, words would have been used evidencing such intention. Happily there is no contrariety in the construction which has been placed upon this clause in the constitution. No judge has ever so manifestly disregarded its plain and unequivocal language as to hold that it applies to a slave voluntarily brought into a free State by his master. On the contrary, there is abundant authority that such a case is not within either the letter or the spirit of the constitutional provision for the rendition of fugitives from labor. Said Mr. Justice Washington, Ex parte Simmons, 6 W. C. C. Reports, 396:—“The slave in this case having been voluntarily brought by his master into this State, I have no cognizance of the case, so far as respects this application, and the master must abide by the laws of this State, so far as they may affect his right. If the man claimed as a slave be not entitled to his freedom under the laws of this State, the master must pursue such remedy for his recovery as the laws of the State have provided for him.”

In Jones v. Vanzandt, 5 Howard, 229, Mr. Justice Woodbury uses language equally expressive: “But the power of national law,” said that eminent jurist, “to pursue and regain most kinds of property in the limits of a foreign government is rather an act of comity than strict right, and hence as property in persons might not thus be recognized in some of the states in the Union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the constitution as one of its compromises for the safety of that portion of the Union which did not permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining state; this was thought to be too harsh a doctrine in respect to any title to property of a friendly neighbor, not brought nor placed in another state under state laws by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed.”

Other authorities might be quoted to the same effect, but it is unnecessary, for if it be not clear that one voluntarily brought into a state is not a fugitive, no judicial language can ever make him so. Will we then, for the sake of sustaining this jurisdiction, presume that these slaves of Mr. Wheeler escaped from Virginia into Pennsylvania, when no such allegation was made in his petition, when it is expressly stated in the petition of Mr. Williamson, verified by his affirmation, that they were brought here voluntarily by their master, and when this fact is virtually conceded by the judge of the district court in his opinion? Great as is my respect for the judicial authorities of the federal government, I cannot consent to stultify myself in order to sustain their unauthorized judgments, and more particularly where, as in the case before us, it would be at the expense of the liberty of a citizen of this commonwealth.

The only remaining ground upon which this jurisdiction can be claimed, is that it was in a controversy between citizens of different states, and I shall dismiss this branch of the case simply by affirming—1, that the proceeding by habeas corpus is in no legal sense a controversy between private parties; and 2, if it were, to the circuit court alone is given this jurisdiction. For the correctness of the first position, I refer to the opinion of Mr. Justice Baldwin in Holmes v. Jennifer, published in the appendix to 14 Peters, and to that of Judge Betts, of the circuit court of New York, in Berry v. Mercein et al. reported in 5 Howard, 103. And for the second, to the 11th section of the judiciary act, passed on the 24th of September, 1789.

My view of this case had been committed to writing before I had seen or heard the opinion of the majority of the court. Having heard it hastily read but once, I may mistake its purport, but if I do not, it places the refusal of the habeas corpus mainly upon the ground that the conviction for contempt was a separate proceeding, and that, as the district court had jurisdiction to punish for contempts, we have no power to review its decision. Or, as it appears from the record that the prisoner is in custody upon a conviction for contempt, we are powerless to grant him relief.

Notwithstanding the numerous cases that are cited to sustain this position, it appears to me to be as novel as it is dangerous. Every court of justice in this country has, in some degree, the power to commit for contempt. Can it be possible that a citizen once committed for contempt is beyond the hope of relief, even although the record shows that the alleged contempt was not within the power of the court to punish summarily? Suppose that the judge of the district court should send to prison an editor of a newspaper for a contempt of his court in commenting upon his decision in this very case; would the prisoner be beyond the reach of our writ of habeas corpus? If he would, our boasted security of personal liberty is in truth an idle boast, and our constitutional guaranties and writs of right are as ropes of sand. But in the name of the law, I aver that no such power exists with any court or judge, state or federal, and if it is attempted to be exercised, there are modes of relief, full and ample, for the exigency of the occasion.

I have not had either time or opportunity to examine all of the cases cited, but, as far as I have examined them, they decide this and nothing more—that where a court of competent jurisdiction convicts one of a contempt, another court, without appellate power, will not reËxamine the case to determine whether a contempt was really committed or not. The history of punishments for contempts of courts, and the legislative action thereon, both in our State and Union, in an unmistakable manner teaches, first, the liability of this power to be abused; and second, the promptness with which its unguarded use has been followed by legislative restrictions. It is no longer an undefined, unlimited power of a star chamber character, to be used for the oppression of the citizen at the mere caprice of the judge or court, but it has its boundaries so distinctly defined that there is no mistaking the extent to which our tribunals of law may go in punishment for this offence.

In the words of the act of Congress of 2d March, 1831, “The power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, jurors, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or command of said courts.”

Now, Passmore Williamson was convicted of a contempt for disobeying a writ of habeas corpus, commanding him to produce before the district court certain persons claimed by Mr. Wheeler as slaves. Was it a lawful writ? Clearly not, if the court had no jurisdiction to issue it; and that it had not I think is very plain. If it was unlawful, the person to whom it was directed was not bound to obey it; and, in the very words of the statute, the power to punish for contempt “shall not be construed to extend to it.”

But, says the opinion of the majority, he was convicted of a contempt of court, and we will not look into the record to see how the contempt was committed. I answer this by asserting that you cannot see the conviction without seeing the cause: 1, the petition; 2, the writ and the alias writ of habeas corpus; 3, the return; and 4, the judgment.

“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.” As I understand the opinion of a majority of my brethren, as soon as we get to the word contempt the book must be closed, and it becomes instantly sealed as to the residue of the record. To sustain this commitment we must, it seems, first presume, in the very teeth of the admitted fact, that these were runaway slaves; and second, we must be careful to read only portions of the record, lest we should find that the prisoner was committed for refusing to obey an unlawful writ.

I cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the State. While in contests involving the right of property merely, I presume we may still treat these judgments of the United States courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to pronounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment pronounced by a court of competent jurisdiction, acting within the admitted sphere of its constitutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the Court of Queen’s Bench in England, and this upon the authority of decisions pronounced in cases not at all analogous to the one now under consideration. I believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of habeas corpus to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ should be awarded.

1. At common law, and by our statute of 1785, the writ of habeas corpus ad sufficiendum, is a writ of right, demandable whenever a petition in due form asserts what, if true, would entitle the party to relief.

2. That an allegation in a petition that the petitioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue.

3. That where a person is imprisoned by an order of a judge of the district court of the United States for refusing to answer a writ of habeas corpus, he is entitled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of habeas corpus by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction.

5. That the courts of the federal government are courts of limited jurisdiction, derived from the constitution of the United States and the acts of Congress under the constitution, and that when the jurisdiction is not given by the constitution or by Congress in pursuance of the constitution, it does not exist.

6. That when it does not appear by the record that the court had jurisdiction in a proceeding under our habeas corpus act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a rule for a habeas corpus, all the facts set forth in the petition tending to show want of jurisdiction are to be considered as true, unless they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a slave to a free State, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the State into which he is thus brought.9. That if a slave so brought into a free State escapes from the custody of his master while in said State, the right of the master to reclaim him is not a question arising under the constitution of the United States or the laws thereof; a judge of the United States cannot issue a writ of habeas corpus directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge.

10. That the district court of the United States for the eastern district of Pennsylvania has no jurisdiction because a controversy is between citizens of different States, and that a proceeding by habeas corpus is, in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to “lawful” writs.

12. That where it appears from the record that the conviction was for disobeying a writ of habeas corpus, which writ the court have no jurisdiction to issue, the conviction is coram non judice, and void.

For these reasons I do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for.

No. V.

How Passmore Williamson was finally discharged.

Previously to the application on Williamson’s behalf to the supreme court of Pennsylvania, Jane Johnson, the woman who, and her two sons, were claimed as slaves by Wheeler, had appeared before Judge Culver of New York, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that Williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to assure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent Wheeler from detaining her. The same facts she had afterwards testified to in open court in Philadelphia, on the trial for assault and riot of the colored men who had assisted her to escape.After the failure of the application to the supreme court of Pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of Williamson’s false imprisonment, but acting wholly independently of him, induced Jane Johnson to present a petition to Judge Kane, setting forth all the above facts, and praying that as the writ of habeas corpus obtained by Wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. After argument upon the question of allowing this petition to be filed, Judge Kane delivered a long and very elaborate opinion, embracing three principal topics. He began with a very elaborate eulogy upon the writ of habeas corpus, coming with a very singular grace from a judge who had prostituted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and assisted Jane Johnson to vindicate her rights under the laws of Pennsylvania. Next followed Judge Kane’s version of his proceedings in committing Williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the petition of Jane Johnson, or to pay any attention to its suggestions, on the following grounds:

“The very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. She asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. On the contrary, her counsel have told me expressly that Mr. Williamson has not sanctioned her application. She has therefore no status whatever in this court.”

After the delivery of this opinion a little episode followed, evidently got up with a view to relieve Judge Kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding:—

“On the conclusion of the delivery of this opinion, John Cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circumstances attending the commitment of Passmore Williamson, a proposition was made to amend the return to the writ, when Judge Kane replied:—‘I will not receive an amendment now, but will be prepared to receive it when the record has been completed.’“No such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts.

“Judge Kane replied that his (Mr. Cadwallader’s) impression was correct. He had been prepared to receive a supplementary return from Mr. Williamson’s counsel, but none had been offered.

“Mr. Cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. He was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation.

“Mr. Cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record.”[158]

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for Williamson, appeared in Judge Kane’s court, and asked leave to read a petition from Williamson. This petition contained a statement of the facts in relation to his connection with the liberation of Jane Johnson and her children, similar to that contained in his petition to the supreme court of Pennsylvania, Appendix. No. I. The following account of the proceedings on this motion is taken from the Philadelphia Gazette:—

Judge Kane said, ‘The court cannot hear an application from a party in contempt, except to absolve him. I understand there is an application, by petition, in the name of Passmore Williamson, which is not to relieve himself from the contempt, but—’

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane said: ‘Let us not be misunderstood—I am not prepared to receive an application from Passmore Williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. I am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him.

‘If, therefore, the counsel arise to present an application from Mr. Williamson, it must be for purgation. The counsel do not inform the court whether they are here to purge Mr. Williamson from the contempt. As at present advised, I have no power to hear their application, whatever it may be, in his behalf.’

Mr. Meredith said there were two kinds of contempts; one of personal insult to the bench, with which Passmore Williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. He did not believe it was in the power of the entire press of the United States, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court that Passmore Williamson was desirous of testifying now his willingness to obey the exigencies of the writ of habeas corpus. If so, he had a simple, straightforward, honorable course to pursue. He has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. What is understood by ‘purgation’ is not simply a mere form of words. It matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. He said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation.

The respondent’s counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from Passmore Williamson.Mr. Meredith said he had found nothing in the authorities, either English or American, where persons were held guilty of a contempt in responding to a writ of habeas corpus unless the return was evasive. He referred to a case in 3 Mason, where, in a return to a writ before Judge Story, there was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. Mr. M. submitted whether it was not proper to subject the petitioner in this case to a further questioning. He could not find in English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer interrogatories. Why had they not been propounded in the form that the court might think proper to put them? No case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. How is he to answer what has not been filed?

According to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. If another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt.

Judge Kane said that the defendant could make a declaration, that he was now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt.

The court then said, ‘In some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or per se. I see no difficulty in the way of the court’s giving this decision in the form of an order.

‘The suggestion of the counsel now has frequently been intimated by the court. The prisoner might at any time, under a proper application, have been before the court. If there was a misunderstanding of the position of the case by the counsel for Mr. Williamson, it is a matter of sincere regret to me.’

Mr. Meredith said he could not find any case of petition that interrogatories should be filed, in any of the English books.

Judge Kane.—The gentleman, Mr. Williamson, is now recusant, and I often think that forms sometimes have meaning and I cannot interfere otherwise than to say as I have said above.Mr. Meredith.—I can enlarge the remark and say that forms always have meaning. He argued that the purging interrogatories must be filed. If not filed, the party was entitled to his discharge. He argued from the ‘Chancery Practice’ of Smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him.

Mr. Van Dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. So far as Mr. Williamson is concerned, he has no standing. The argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. How far can a man in contempt come into court and purge that contempt? How did the counsel get over the fact, that his client was in contempt? He must first submit himself to the court by asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an entry on the part of Judge Kane of the following order on the record.

The United States v. Williamson. And now, October the 29th, 1855, the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of Passmore Williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said Passmore Williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said Passmore Williamson hath not at this time a standing in this court.

To the end, however, that the said Passmore Williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, Passmore Williamson shall set forth, under his oath or solemn affirmation that ‘he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore legally enquired of by the writ of habeas corpus to him directed, at the relation of John H. Wheeler,’ then the marshal do bring the said Passmore Williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. And it is further ordered that the clerk do furnish copies of this order to the said Passmore Williamson, and to the attorney of the United States, and to the marshal.Under this order Williamson presented the following petition:

Judge Kane hesitated to receive this petition because it did not conform to his order by containing the word legally, before the phrase “inquired of,” (thus confirming the legality of the proceedings under the original writ of habeas corpus directed to Williamson.) But finding that Williamson was resolved to make no such concession, Judge Kane finally concluded to receive the petition, and made the following reply to it:

‘Passmore Williamson: The court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. You will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of habeas corpus, which issued from this court at the relation of John H. Wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. Moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of habeas corpus.’

The required affirmation was then made in the form dictated by the judge.

Mr. Van Dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed.Mr. Van Dyke said he was willing either to file the interrogatory or to submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. The court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the questions and answers should be filed.

The court directed that the interrogatories should be filed.

Mr. Gilpin then read the interrogatory that had been propounded, and the reply of Mr. Williamson.

The interrogatory was as follows:

‘Did you at the time of the service of the writ of habeas corpus, at the relation of John H. Wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? If to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.’

The reply made was as follows:

‘I did not seek to obey the writ by producing the persons therein mentioned before the court, because I had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. I first heard of the writ of habeas corpus on Friday, July 20, between one and two o’clock A. M., on my return from Harrisburg. After breakfast, about nine o’clock, I went from my house to Mr. Hopper’s office, when and where the return was prepared. At ten o’clock I came into court, as commanded by the writ. I sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. Since the service of the writ I have not had the custody, possession or power over them; nor have I known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.’

Some discussion arose between the district attorney and the counsel of Mr. Williamson. Mr. Van Dyke contended that the reply of the defendant was evasive and contradictory. The judge said the difficulty, he thought, could be easily overcome by amending the answer, and at the suggestion of the court it was amended in the following manner:

‘I did not seek to obey the writ by producing the persons in the writ mentioned before this court. I did not seek, because I verily believed that it was entirely impossible for me to produce the said persons, agreeably to the command of the court.’

This answer was then accepted by the court and ordered filed.

Mr. Van Dyke then submitted another interrogatory, the substance of which was, whether or not Mr. Williamson had been guilty of mental reservations in his reply to the first interrogatory?

The court overruled this interrogatory as superfluous and improper.

Mr. Van Dyke withdrew this interrogatory and offered another, which was also overruled by the court, on the ground that it led to such replies as had already been objected to by the district attorney.

Mr. Van Dyke also withdrew this question.

Judge Kane then remarked that the district attorney had been invited to aid the court in this case, but that he would bear in mind that his relation to Mr. Wheeler was now suspended. This was only an inquiry as to what injury had been done the process of the court.

Mr. Van Dyke said he was aware of the position he occupied.

Judge Kane then said: ‘The contempt is now regarded as purged and the party is released from custody. He is now reinstated in the position he occupied before the contempt was committed. Mr. Williamson is now before me on the return to the writ.’

Mr. Van Dyke then arose and addressed the court.

After Mr. Van Dyke had concluded, Mr. Meredith inquired: ‘Is Mr. Williamson discharged?’

Judge Kane replied, ‘He is. I understand from the remarks of the district attorney, that a nolle prosequi has been entered in the case in this court.’

The court then adjourned. Mr. Williamson was congratulated by his friends on his restoration to liberty.[159]

---

Footnotes:

[1] The German graf, for which the Latin comes (in English, count or earl) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is vice-comes, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl.

[2] See Forsyth’s History of Trial by Jury, ch. iv. sec. 4.

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.

[7] In the king’s absence—and the Anglo-Norman kings were often absent on visits to their continental dominions—this chief justiciary acted in all respects as the king’s substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, On the Laws and Customs of the Kingdom of England, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king’s courts, by the writ of pone and others.

[10] Originally, and down to a comparatively recent period, the Inns of Court were real schools, “readers” or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.

[12] Down to the period of the reformation the abbots of the greater monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. In personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a videlicet a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. But in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the Anglo-Saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Palgrave’s English Commonwealth, vol. i. p. 213.

[15] See Forsyth’s Trial by Jury, ch. x. sec. 1.

[16] Down to the time of Elizabeth all cases occurring in Middlesex county, in which Westminster lies, were thus tried in bank.

[17] In London and Middlesex four sessions were held a year; in the four northern counties only one.

[18] This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in council—the appeal cases being heard and decided by a committee of the privy councillors learned in the law—is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law, and without a jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of Parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of Westminster Hall during a whole term.

[22] The name is sometimes spelt BrabaÇon, BrabanÇon, Brabason, and Brabanson.

[23] Hume, who designates them “desperate ruffians,” says “troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. The greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes.”—Vol. i. 438. In America we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.—Ed.

[24] They were removed because, during the king’s absence on the continent, they had been guilty of taking bribes, and other misdemeanors. Of De Wayland, one of their number, and the first chief justice of the Common Pleas, Lord Campbell gives the following account: When arrested, on the king’s return from Aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund’s. However, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. According to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to perishing from want. He was immediately conducted to the Tower of London. Rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. Having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at Dover, he was put on board a ship and departed to foreign parts. He is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take away the liberties of the Scotch we shall presently see.—Ed.

[26] Just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to Congress by northern constituencies, whose rights they then barter away and betray.—Ed.

[27] This is the very ground upon which it is attempted, now, to justify the repeal of the Missouri prohibition of slavery, while Brabacon’s defence of English judges in Scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.—Ed.

[28] May the pending attempts of the Southern States, countenanced and supported by the federal judges, to establish a “superiority” and “direct dominion” over the north, be met and repelled with similar spirit and success!—Ed.

[29] He had been murdered by a body of insurgent peasants headed by Jack Straw, one of the leaders in Wat Tyler’s insurrection.—Ed.

[30] Some of our federal judges would no doubt like very much to see this rule established among us.—Ed.

[31] The persistence of Richard II. in the same arbitrary principles of which the advocacy cost Tresilian his life, caused his deposition a few years afterwards, as to which, Lord Campbell observes,—

“While we honor Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a king was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of Lancaster as usurpers, and those who sided with them as rebels. Yet there is great difficulty in justifying the deposition of James II., and condemning the deposition of Richard II. The latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule.”

[32] Fuller, in praising Fortescue and Markham, says, “These I may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of Lancaster, and the other of York, in the titles to the crown, both of them favored the house of Justice in matters betwixt party and party.”

[33] A list by no means limited to England, but very much lengthened out in America.—Ed.

[34] Some of our American advocates of constructive treasons have laid down the law much in the same spirit.—Ed.

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of the Supreme Court of the United States, got the law retailed in his charge to the grand jury of the Massachusetts District, in consequence of which indictments were found against Wendell Phillips and Theodore Parker for obstructing the execution of the fugitive slave act—on the ground that certain speeches of theirs in Faneuil Hall against that statute “referred to a purpose” and “incited to an act” of resistance to it, thereby making their expression of opinion criminal.—Ed.

[36] The recent claim set up in America for legislative supremacy over conscience—a claim contended for by so many of our leading lawyers and divines—is not less blasphemous and outrageous than this claim of Henry VIII., and belongs to the same category.—Ed.

[37] This would hardly be allowed by some of our American juridical deniers and deriders of the “higher law.” It is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that God shall not be God.—Ed.

[38] One striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. Decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them.—Ed.[39] Some of our American judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.—Ed.

[40] Noy at this time was of the popular party. He afterwards went over to the court, and was made attorney general.—Ed.

[41] Similar pretences of respect for law and popular rights often serve as preface here in America to judgments as atrocious as that of Chief Justice Hyde.—Ed.

[42] This is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to Bishop Burnet’s sensible observation that a precedent against reason “signifies no more but that the like injustice has been done before.”—Ed.

[43] Though the lawyers, both in England and America, have long since abandoned the pretence, so impudently maintained by Hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another—at least in Pennsylvania—a like right, and insist with the same unction upon the absolute necessity of trusting “the courts” in these matters, and of relying upon their “mercy.” See, in the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as delivered by Judge Black, of which the insolent conclusion was evidently borrowed from the above opinion of Chief Justice Hyde.—Ed.

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of the King’s Bench, had been, as well as Crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. He was now the leader of the popular party in the House of Commons.—Ed.

[45] We have had recent striking instances in America of the same thing in some of the “misconstructions” placed by judges on the laws in restraint of drunkenness and liquor selling.—Ed.

[46] Like those given by several federal judges in support of the fugitive slave act.—Ed.

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for ship money.—Ed.

[48] Cro. Car. 403. These forms are no longer used. The chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. But in Scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit.

[49] This is exactly the sort of judges from whom we in America have so much to fear.—Ed.

[50] We have seen in America similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.—Ed.

[51] This is the very doctrine lately revived, in a little different shape, by some of our American divines—that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.—Ed.

[52] Some of our American federal judges are in the habit of declaiming much in the same style against abolitionists—who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the English Puritans in the times of Charles I.—Ed.

[53] Having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.—Ed.

[54] See life of Hyde, ante, p. 97.

[55] This supposed inability of the king to do wrong has in America among a certain class been transferred to the federal government, which represents the royal authority of the English.—Ed.

[56] 2 Bl. Com. 69. Compulsory knighthood was abolished by the Long Parliament, 16 Car. I. c. 20.

[57] Their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of Charles II. and James II.

[58] It is doubtless a like mixture of motives that prompts just now the conduct of some of our American lawyers.—Ed.

[59] Charles II., in his Declaration from Breda, had promised that he should “proceed only against the immediate murderers of his royal father.”

[60] In answer to the address of the two Houses of the Convention Parliament to spare the lives of Vane and Lambert, the lord chancellor reported, “His majesty grants the desire of the said petition;”—the ancient form of passing acts of Parliament. The ultra Cavalier House of Commons which followed desired Vane’s death, but could not alter the law or abrogate the royal promise.

[61] In his younger days, before the civil war, Sir Henry Vane had been among the early emigrants to Massachusetts, and as governor of that colony had borne a part in some remarkable transactions there.—See Hildreth’s History of the United States, vol. i. ch. ix.

[62] A fortress on the south shore of the English Channel, taken by Cromwell from the Spaniards, and by Charles II. sold at this time to Louis XIV. of France.

[63] So Bacon, better at precept than at practice, in his advice to Sir George Villars, requires in judges these three attributes—they must be men of courage, fearing God, and hating covetousness: an ignorant man cannot, a coward dare not be a good judge. On the American bench we have too many cowards.—Ed.

[64] The following dialogue occurred after the verdict:—

Prisoner.—I most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me.

Lord Hyde.—I would not intercede for my own father in this case, if he were alive.

[65] This practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the Commonwealth, but was revived by the new royal judges.

[66] This was the same doctrine afterwards attempted to be maintained by Lord Mansfield, but overruled by a declaratory act of Parliament.

[67] An American specimen of this style of judicial decision may be found in Judge Grier’s way of speaking on the bench about Abolitionists.—Ed.

[68] 6 State Trials, 701-709.

[69] 2 Hale, P. C. 158.

[70] The above passage enclosed in brackets has been added by the editor. Our American judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination.—Ed.

[71] This was an expensive residence built by Clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of Dunkirk.—Ed.

[72] This has been from great antiquity the decoration of the English chief justices. Dugdale says it is derived from the name of St. Simplicius, a Christian judge, who suffered martyrdom under the Emperor Diocletian.—Ed.

[73] Among these was, “whether the act of severing the head of Charles I. from his body could be alleged to have been committed in his own lifetime,” and “whether it should be laid as against the peace of the late or of the present king.” Judge Mallet made the confusion more confounded by maintaining that by the law of England a day is indivisible; and that, as Charles II. certainly was our lawful king during a part of that day, no part of it had been in the reign of Charles I.

[74] This case, thus characterized by Lord Campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. This bloody idea was first started by George T. Curtis, a slave-catching commissioner of Massachusetts, in his telegraphic despatch to Mr. Webster, giving an account of the rescue at Boston, by a number of colored men, from the hands of the U. S. marshal, of a man named Shadrach, who had been seized on one of Commissioner Curtis’s warrants as a fugitive slave.

Not long after, in September, 1851, a Maryland slaveholder named Gorsuch obtained from the notorious Edward D. Ingraham, the Philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. He proceeded with an armed party and a deputy marshal to Christiana, and besieged a house in which the slaves were said to have taken refuge. Intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. Some of their colored friends gallantly came to their aid and generously shared their danger. Gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. The besiegers called for assistance, and meeting Caspar Hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. Mr. Hanway, as became a republican and a Christian, refused obedience to the infamous mandate. In the mean time the negroes made, it would seem, a sortie, advancing on the enemy. Hanway called to them not to fire. His exhortation was unheeded. Gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight.

At the next meeting of the United States District Court for the Eastern District of Pennsylvania, this case was brought to the notice of the grand jury by Judge Kane.

After reciting the facts as they appeared in the newspapers, he added, that it was reported “that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution.” In other words, anti-slavery meetings had been held in Lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to participate in slave hunts.

“If,” said the judge; “the circumstances to which I have adverted [viz: the riot at Christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law.” And what crime is that? Treason. And what is treason? The judge answers, “Levying war against the United States.” And what had the affair at Christiana to do with war against the United States? Again the judge replies, “Any combination forcibly to prevent or oppose the execution or enforcement of a provision of the Constitution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination,” is embraced in the expression “levying war against the United States,” as used in the constitutional definition of treason. Hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the United States.

But the judge’s patriotic zeal against traitors did not confine itself to the enemies of the United States actively engaged in the Christiana campaign. Here, indeed, he went far beyond even the infamous Judge Kelynge. “It is not necessary,” so he told the grand jury, “to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. Though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. In treason, there are no accessories.” From all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are principals, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. To strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, “While he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it.”

What is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it.

Of these thirty indictments, the only one brought to trial was that against Caspar Hanway, above mentioned. The only acts proved against this man, in support of the charge of having “traitorously levied war against the United States,” were, 1. having declined to assist the marshal in arresting the fugitives; and 2. in calling to the negroes and urging them not to fire.

Judge Grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of Judge Kane, that “a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors.” The prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule Judge Kane’s ingenious device for hanging all who resisted the fugitive slave law. Yet this same man, at a Kossuth meeting at Philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of Vattel, “When a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be assisted in the defence of their liberties.”—Ed.

[75] See ante, pp. 150, 151.

[76] And yet it is upon the authority of these worthless reports that some important American decisions have been based. See 13 Mass. Reports, 356, Commonwealth v. Bowen; also the preceding note.—Ed.

[77] For an account of Chiffinch, see the Life of Jeffrey, p. 278.

[78] Our recent American history presents a curious parallel to the English Popish plot delusion and the use made of it by the unscrupulous politicians of that age. The basis of that delusion was the well-founded horror which the English people entertained for the Popish religion as hostile to their liberties. The immediate allegation upon which it rested was, that the Papists had formed a conspiracy to assassinate Charles II., and so to open the way to the throne for the Duke of York, (afterwards James II.,) a professed Papist.

The suggestion of this plot, founded merely on vague suspicions,—(if indeed it was not, as some writers think, purposely started for political objects,)—was taken hold of by the unprincipled Shaftesbury, who from having been an ultra courtier, had become the leader of the country party. He sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the Duke of York from succession to the throne. He expected that the court would oppose this delusion, and so would make itself still more unpopular. But Charles II., no less unprincipled than Shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for Protestantism, (though all the while secretly a Papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims.

So here in America, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the Union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the Union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. The whigs, however, in imitation of the policy of Charles II., and under the leadership of the late Daniel Webster, sought to turn this pretended plot to their own advantage, by coming out still more furious Union-savers than even the democrats, and denouncing the abolitionists with still greater fury—thus working up the public mind into a terror at the imaginary danger of the Union, much like that of the English people at the time of the Popish plot. We, too, have had our trials for treason, (see ante, p. 158-161;) and if we have had no bloody executions, it has not been for want of Scroggses, both on and off the bench.—Ed.

[79] For this he probably received a good sum of money.

[80] “By his zeal in the Protestant cause he gained for a while a universal applause throughout the whole nation.”—AthenÆ, iv. 116.

[81] This profession of contempt for “vulgar noise” has lately been repeated in America by a judge whose manner and bearing on the bench come as near those of Scroggs as the present times will bear.—Ed.

[82] From this asseveration a suspicion arises of pecuniary corruption; but I believe that Scroggs was swayed in this instance by a disinterested love of rascality.

[83] Roger North, whose curious life of his brother is largely quoted in this memoir.—Ed.

[84] At that time not more than fifty volumes were required. Now, unfortunately, a law library is “multorum camelorum onus,” (a load for many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in England, but in America it is still sufficiently common.—Ed.

[86] The distinguishing badge worn by the king’s counsel. The barristers wear stuff gowns. The serjeants, (the highest rank of practitioners,) enjoying a monopoly of the practice of the Court of Common Pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time substituted,) and parti-colored robes.—Ed.

[87] The hours then kept must have been very inconvenient for lawyers in Parliament, as all the courts and both houses met at eight in the morning and sat till noon.

[88] This early rising rendered it necessary for him to take “a short turn in the other world after dinner.”

[89] Roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself.

[90] This was the title taken by Finch on promotion to the great seal. Nottingham is greatly lauded by Blackstone and other writers on jurisprudence as a “consummate lawyer,” and as the father of the modern English equity system. His abilities were unquestionable, but his political career, like that of so many other “consummate lawyers,” has some very black spots.—Ed.

[91] Here we have one of many English precedents of assault upon the right of petition—a thing by no means unknown in our American politics.—Ed.

[92] The same Parliament had already impeached Scroggs. See ante, p. 180.

[93] Here again is the old pretence of “levying war,” under which it has been attempted with us to convert hostility to the fugitive slave act into treason. See ante, p. 158.—Ed.

[94] Pemberton, though well aware that, to justify the grand jury in finding an indictment, a prima facie case of guilt must be made out, instructed them that “a probable ground of accusation” was sufficient.—Ed.

[95] By this word “pension,” I conceive we are to understand salary while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of the King’s Bench, but not being found quite serviceable enough, was now removed into another court.—Ed.

[97] “Sir F. North being made lord keeper on the death of the Earl of Nottingham, the lord chancellor, I went to congratulate him. He is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies.”—Mem. i. 513. Judge Kane is said to be quite an accomplished person.—Ed.

[98] The principal obstacle to law reform in America is the pecuniary interest which the lawyers think they have in keeping up old abuses.—Ed.

[99] Bishop Burnet, the historian.

[100] See beyond, life of Jeffreys, p. 302.

[101] An account of Guilford’s unavailing attempt to prevent this appointment will be found in the life of Wright, chap. xix.—Ed.

[102] It is curious that Roger gravely states that “he was dropped from the tory list and turned trimmer.”—Life, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the council met in the afternoon, between two and three—dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o’clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of Popery,) is like our American slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.—Ed.

[105] Life, ii. 150, 153, 334.

[106] Lord Coke lays down, that upon such an occasion there ought to be a warrant by advice of the Privy Council, as in 32 H. 8, to certain physicians and surgeons named, authorizing them to administer to the royal patient “potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra,” &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.—4 Inst. 251. These were the precautions of times when no eminent person died suddenly without suspicion of poison. Even Charles II. was at first said to have been cut off to make way for a Popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the Roman Catholic church.

[107] See the speech at full length. Life, ii. 192. There is nothing in it very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.

[109] We may add—for his tory principles, and for the loss of America to the British crown.—Ed.

[110] Saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our American lawyers.—Ed.

[111] This is not the William Jones mentioned in the life of Lord North, but a person of a different character, one Edward Jones.—Ed.

[112] So we have lately seen five inhabitants of Philadelphia prosecuted for a riot, for aiding to give effect to a statute of that state abolishing negro slavery.—Ed.

[113] The editions of these Reports by the late Serjeant Williams, and by the present most learned judges, Mr. Justice Patteson and Mr. Justice Vaughan Williams, illustrated by admirable notes, may be said to embody the whole common law of England, scattered about, I must confess, rather immethodically.

[114] The name is spelt no fewer than eight different ways—“Jeffries,” “Jefferies,” “Jefferys,” “Jeffereys,” “Jefferyes,” “Jeffrys,” “Jeffryes,” and “Jeffreys,” and he himself spelt it differently at different times of his life; but the last spelling is that which is found in his patent of peerage, and which he always used afterwards.

[115] “Le roy s’avisera,” the royal veto to a bill passed by the two houses.

[116] Roger L’Estrange was a noted pamphleteer, one of the oracles of the high church and Tory party, and the founder of the first English newspaper.—Ed.

[117] See the account of this trial in the life of North, Lord Guilford, ante, p. 210.

[118] See ante, p. 220.

[119] See life of Saunders, ante, p. 261.

[120] Evelyn, Oct. 4, 1683. “Sir Geo. Jeffreys was advanced, reputed to be most ignorant, but most daring.”

[121] Stat. 6 Ed. 6 enacted that if any outlaw yielded himself to the chief justice, &c., within a year, he should be discharged of the outlawry, and entitled to a jury.

[122] Burn. Own Times, i. 580. “The king accompanied the gift with a piece of advice somewhat extraordinary from a king to a judge:—‘My lord, as it is a hot summer, and you are going the circuit, I desire you will not drink too much.’”

[123] Dangerfield had been a confederate of Oates as one of the false witnesses to the pretended Popish plot.—Ed.

[124] For the disputes between them, see ante, p. 228-240.

[125] Ante, p. 230.

[126] This rigorous sentence was rigorously executed. On the day on which Oates was pilloried in Palace Yard, he was mercilessly pelted, and ran some risk of being pulled in pieces; but in the city his partisans mustered in great force, raised a riot, and upset the pillory. They were, however, unable to rescue their favorite. It was supposed that he would try to escape the horrible doom which awaited him by swallowing poison. All that he ate and drank was therefore carefully inspected. On the following morning he was brought forth to undergo his first flogging. At an early hour an innumerable multitude filled all the streets from Aldgate to the Old Bailey. The hangman laid on the lash with such unusual severity as showed that he had received special instructions. The blood ran down in rivulets. For a time the criminal showed a strange constancy; but at last his stubborn fortitude gave way. His bellowings were frightful to hear. He swooned several times; but the scourge still continued to descend. When he was unbound, it seemed that he had borne as much as the human frame can bear without dissolution. James was entreated to remit the second flogging. His answer was short and clear. “He shall go through with it, if he has breath in his body.” An attempt was made to obtain the queen’s intercession, but she indignantly refused to say a word in favor of such a wretch. After an interval of only forty-eight hours, Oates was again brought out of his dungeon. He was unable to stand, and it was necessary to drag him to Tyburn on a sledge. He seemed quite insensible, and the tories reported that he had stupefied himself with strong drink. A person who counted the stripes on the second day said that they were seventeen hundred. The bad man escaped with life, but so narrowly that his ignorant and bigoted admirers thought his recovery miraculous, and appealed to it as a proof of his innocence. The doors of the prison closed upon him. During many months he remained ironed in the darkest hole of Newgate. It was said that in his cell he gave himself up to melancholy, and sat whole days uttering deep groans, his arms folded, and his hat pulled over his eyes. It was not in England alone that these events excited strong interest. Millions of Roman Catholics, who knew nothing of our institutions or of our factions, had heard that a persecution of singular barbarity had raged in our island against the professors of the true faith, that many pious men had suffered martyrdom, and that Titus Oates had been the chief murderer. There was, therefore, great joy in distant countries when it was known that the divine justice had overtaken him. Engravings of him, looking out from the pillory, and writhing at the cart’s tail, were circulated all over Europe; and epigrammatists, in many languages, made merry with the doctoral title which he pretended to have received from the university of Salamanca, and remarked that since his forehead could not be made to blush, it was but reasonable that his back should do so.

Horrible as were the sufferings of Oates, they did not equal his crimes. Nevertheless, the punishment which was inflicted upon him cannot be justified. In sentencing him to be stripped of his ecclesiastical habit and imprisoned for life, the judges seem to have exceeded their legal power. They were undoubtedly competent to inflict whipping, nor had the law assigned a limit to the number of stripes; but the spirit of the law clearly was that no misdemeanor should be punished more severely than the most atrocious felonies. The worst felon could only be hanged. The judges, as they believed, sentenced Oates to be scourged to death. That the law was defective, is not a sufficient excuse; for defective laws should be altered by the legislature, and not strained by the tribunals; and least of all should the law be strained for the purpose of inflicting torture and destroying life. That Oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterward used as precedents for oppressing the innocent. Thus it was in the present case. Merciless flogging soon became an ordinary punishment for political misdemeanors of no very aggravated kind. Men were sentenced for hasty words spoken against the government to pain so excruciating that they, with unfeigned earnestness, begged to be brought to trial on capital charges, and sent to the gallows. Happily, the progress of this great evil was speedily stopped by the revolution, and by that article of the Bill of Rights which condemns all cruel and unusual punishments.—Macaulay’s History of England.

[127] Fox’s Hist. James, ii. 96.

[128] Macaulay gives the following account of this trial:

“When the trial came on at Guildhall, a crowd of those who loved and honored Baxter filled the court. At his side stood Doctor William Bates, one of the most eminent Nonconformist divines. Two Whig barristers of great note, Pollexfen and Wallop, appeared for the defendant. Pollexfen had scarce begun his address to the jury, when the chief justice broke forth—‘Pollexfen, I know you well. I will set a mark on you. You are the patron of the faction. This is an old rogue, a schismatical knave, a hypocritical villain. He hates the liturgy. He would have nothing but long-winded cant without book;’ and then his lordship turned up his eyes, clasped his hands, and began to sing through his nose, in imitation of what he supposed to be Baxter’s style of praying, ‘Lord, we are thy people, thy peculiar people, thy dear people.’ Pollexfen gently reminded the court that his late majesty had thought Baxter deserving of a bishopric. ‘And what ailed the old blockhead then,’ cried Jeffreys, ‘that he did not take it?’ His fury now rose almost to madness. He called Baxter a dog, and swore that it would be no more than justice to whip such a villain through the whole city.

“Wallop interposed, but fared no better than his leader. ‘You are in all these dirty causes, Mr. Wallop,’ said the judge. ‘Gentlemen of the long robe ought to be ashamed to assist such factious knaves.’ The advocate made another attempt to obtain a hearing, but to no purpose. ‘If you do not know your duty,’ said Jeffreys, ‘I will teach it you.’

“Wallop sat down, and Baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of Hudibras. ‘My lord,’ said the old man, ‘I have been much blamed by dissenters for speaking respectfully of bishops.’ ‘Baxter for bishops!’ cried the judge; ‘that’s a merry conceit indeed. I know what you mean by bishops—rascals like yourself, Kidderminster bishops, factious, snivelling Presbyterians!’ Again Baxter essayed to speak, and again Jeffreys bellowed, ‘Richard, Richard, dost thou think we will let thee poison the court? Richard, thou art an old knave. Thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. By the grace of God, I’ll look after thee. I see a great many of your brotherhood waiting to know what will befall their mighty Don. And there,’ he continued, fixing his savage eye on Bates, ‘there is a doctor of the party at your elbow. But, by the grace of God Almighty, I will crush you all!’

“Baxter held his peace. But one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made would not bear the construction put on them by the information. With this view he began to read the context. In a moment he was roared down. ‘You sha’n’t turn the court into a conventicle!’ The noise of weeping was heard from some of those who surrounded Baxter. ‘Snivelling calves!’ said the judge.

“Witnesses to character were in attendance, and among them were several clergymen of the established church. But the chief justice would hear nothing. ‘Does your lordship think,’ said Baxter, ‘that any jury will convict a man on such a trial as this?’ ‘I warrant you, Mr. Baxter,’ said Jeffreys. ‘Don’t trouble yourself about that.’ Jeffreys was right. The sheriffs were the tools of the government. The jury, selected by the sheriffs from among the fiercest zealots of the Tory party, conferred for a moment, and returned a verdict of guilty. ‘My lord,’ said Baxter, as he left the court, ‘there was once a chief justice who would have treated me very differently.’ He alluded to his learned and virtuous friend, Sir Matthew Hale. ‘There is not an honest man in England,’ said Jeffreys, ‘but looks on thee as a knave.’”

[129] It is remarkable that the first common law judge, ever as such raised to the peerage, was this infamous Jeffreys. We speak of Lord Coke, Lord Hale, and so of the other chief justices, but they were lords simply by their surnames and by virtue of their office, and not peers.—Ed.

[130] Ante, p. 237, et seq.

[131] Bristol at this time was next to London in population, wealth, and commerce.—Ed.

[132] Macaulay states the number of the transported at eight hundred and forty-one, and of the hanged at three hundred and twenty.—Ed.

[133] He bought with it a large estate, the name of which the people changed to Aceldama, as being bought with innocent blood.—Ed.

[134] Perhaps this writer had in his eye the case of John Tutchin, a noted political writer, satirized by Pope, a mere boy at the time of the rebellion, and of whose case Macaulay gives the following account: “A still more frightful sentence was passed on a lad named Tutchin, who was tried for seditious words. He was, as usual, interrupted in his defence by ribaldry and scurrility from the judgment seat. ‘You are a rebel; and all your family have been rebels since Adam. They tell me that you are a poet. I’ll cap verses with you.’ The sentence was, that the boy should be imprisoned seven years, and should, during that period, be flogged through every market town in Dorsetshire every year. The women in the galleries burst into tears. The clerk of the arraigns stood up in great disorder. ‘My lord,’ said he, ‘the prisoner is very young. There are many market towns in our county. The sentence amounts to whipping once a fortnight for seven years.’ ‘If he is a young man,’ said Jeffreys, ‘he is an old rogue. Ladies, you do not know the villain as well as I do. The punishment is not half bad enough for him. All the interest in England shall not alter it.’ Tutchin, in his despair, petitioned, and probably with sincerity, that he might be hanged. Fortunately for him, he was, just at this conjuncture, taken ill of the small pox, and given over. As it seemed highly improbable that the sentence would ever be executed, the chief justice consented to remit it in return for a bribe which reduced the prisoner to poverty. The temper of Tutchin, not originally very mild, was exasperated to madness by what he had undergone. He lived to be known as one of the most acrimonious and pertinacious enemies of the house of Stuart and of the Tory party.”—Ed.

[135] Ante, p. 000.

[136] One of the strongest testimonies against James is his own letter to the Prince of Orange, dated Sept. 24, 1685, in which, after giving him a long account of his fox-hunting, he says, “As for news, there is little stirring, but that the lord chief justice has almost done his campaign. He has already condemned several hundreds, some of which are already executed, some are to be, and the others sent to the plantations.”—Dalrymple’s App. part ii. 165. The only public man who showed any bowels of compassion amidst these horrors was Lord Sunderland. Whig party writers are at great pains to exculpate Pollexfen, the great Whig lawyer, who conducted all these prosecutions as counsel for the crown; but I think he comes in for no small share of the infamy then incurred, and he must be considered as principal aide de camp to Jeffreys in the western campaign. He ought to have told the jury that there was no case against the Lady Lisle, and when a few examples had been made, he ought to have stopped the prosecutions, or have thrown up his briefs.

[137] I hope I have not been prejudiced in my estimate of James’s character by the consideration that when acting as regent in Scotland he issued an order (afterwards recalled) for the utter suppression of the name of Campbell, “which,” says Mackintosh, “would have amounted to a proscription of several noblemen, a considerable body of gentry, and the most numerous and powerful tribe in the kingdom.”

[138] This “dispensing power” claimed by Jeffreys and the English judges for James II. was but a trifle compared to the “dispensing power” recently claimed by some of our American lawyers and judges for acts of Congress. All that was claimed for James was, power to dispense with acts of Parliament, while our American improvers upon this doctrine go so far as to claim for Congress a power to dispense with and supersede the laws of God.—Ed.

[139] Whether diplomatic intercourse with the pope is now forbidden, depends upon the construction to be put upon the words, “shall hold communion with the see or church of Rome” in the Bill of Rights. This seems to refer to spiritual communion only, or the queen would hold communion with the successor of Mahomet by appointing an ambassador to the sublime porte.

[140] The strong analogy between these ecclesiastical commissioners and our recent American slave catching commissioners, both in powers, method of procedure, and object arrived at, has been already referred to, and can hardly fail to strike the reader.—Ed.

[141] Judge Kane, in Passmore Williamson’s case, went further than that. Because he refused to obey the mandate of Judge Kane to produce in his court certain persons over whom he had no control, with a view to their surrender to slavery, Judge Kane, under the name of a contempt, sentenced him to an indefinite imprisonment.—Ed.

[142] When a peer is tried in Parliament before the House of Lords, the lord high steward votes like the rest of the peers, who have all a right to be present; but if the trial be out of Parliament, the lord high steward is only the judge to give direction in point of law, and the verdict is by the lords triers specially summoned.

[143] In James’s memoirs, all the blame of this prosecution is thrown upon Jeffreys; but it is more probable that he only recklessly supported his master.

[144] The arrangement of counsel in this celebrated case was very whimsical. The bishops were defended by Pemberton, the ex-chief justice, who had presided at several of the late state trials, by Levinz, Sawyer, and Finch, who had conducted them very oppressively for the crown, and by Pollexfen, Treby, and Somers, considered steady Whigs.

[145] It was pretended by the anti-Jacobites, that is, the enemies of James and the exiled Stuarts, that the infant had been smuggled into the queen’s bed in a warming-pan.—Ed.

[146] 24th November, 1688. 2 Vernon, 88, Searle v. Lane. By a reference to the minute books in the registrar’s office, it appears that Jeffreys sat again on Monday, Nov. 26, when he decided Duval v. Edwards, a case on exceptions, nine in number, giving a separate judgment on each. He did not sit on the 27th, but he did on the 28th, which was the last day of term. So late as the 8th of December he sat and heard several petitions. In the evening of this day the great seal was taken from him.

[147] “Bottomry bond.” This contraction shows the etymology of an elegant English word from “bottom,” which Dr. Johnson chooses to derive from the Dutch word “bomme.”

[148] i. e. The principal being put in hazard, the interest was not usurious.

[149] The following is from Macaulay’s elaborate portraiture of Jeffreys on the bench: “All tenderness for the feelings of others, all self-respect, all sense of the becoming, were obliterated from his mind. He acquired a boundless command of the rhetoric in which the vulgar express hatred and contempt. The profusion of maledictions and vituperative epithets which composed his vocabulary could hardly have been rivalled in the fish-market or the bear-garden. His countenance and his voice must always have been unamiable; but these natural advantages—for such he seems to have thought them—he had improved to such a degree that there were few who, in his paroxysms of rage, could see or hear him without emotion. Impudence and ferocity sat upon his brow. The glare of his eyes had a fascination for the unhappy victim on whom they were fixed; yet his brow and eye were said to be less terrible than the savage lines of his mouth. His yell of fury, as was said by one who had often heard it, sounded like the thunder of the judgment day.”

[150] Down to this time trials at nisi prius had not assumed their present shape. The issue being read to the jury, the evidence was given, and with hardly any speeches from counsel, all seems to have been left to the judge.

[151] 10 State Trials, 267.

[152] The plan was formed of ruling by a standing army. But without a Parliament, how was this army to be kept in a proper state of discipline? In time of war, or during a rebellion, troops in the field were subject to martial law, and they might be punished, by sentence of a court martial, for mutiny or desertion. But the country was now in a state of peace and profound tranquillity; and the common law, which alone prevailed, knew no distinction between citizen and soldier; so that, if a lifeguardsman deserted, he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery. While the king’s military force consisted of a few regiments of household troops, with high pay, desertion was not to be apprehended, and military offences were sufficiently punished by dismission from the service. But James found it impossible to govern the numerous army which he had collected at Hounslow without the assistance of martial law; and he contended that, without any act of Parliament, he was at all times entitled, by virtue of his prerogative, to put martial law in force against military men, although it could only be put in force against civilians when war or rebellion was raging in the kingdom.

The question first arose at the Old Bailey, before Sir John Holt, then recorder of London, and he decided against the crown, as might have been expected; for, while avoiding keen partisanship in politics, he had been always Whiggishly inclined. James thought he was quite secure by appealing to the ultra Tory, Lord Chief Justice Herbert. To the utter amazement of the king and the courtiers, this honorable, although shallow, magistrate declared that, without an act of Parliament, all laws were equally applicable to all his majesty’s subjects, whether wearing red coats or gray. Being taunted with inconsistency in respect of his judgment in favor of the dispensing power, he took this distinction, “that a statute altering the common law might be suspended by the king, who is really the lawgiver, notwithstanding the form that he enacts ‘with the assent of the lords spiritual and temporal, and Commons;’ but that the common law cannot be altered by the king’s sole authority, and that the king can do nothing contrary to the common law, as that must be considered coeval with the monarchy.”

James, with the infatuated obstinacy which was now driving him to destruction, set this opinion at defiance; and, encouraged by Jeffreys, caused a soldier to be capitally prosecuted, at the Reading assizes, for deserting his colors. The judges who presided there resorted to some obsolete, inapplicable act of Parliament, and were weak enough to lay down the law in the manner suggested to them by the chancellor, so that a conviction was obtained. To give greater solemnity and eclat to the execution, the attorney general moved the Court of King’s Bench for an order that it might take place at Plymouth, in sight of the garrison from which the prisoner had run away. But Herbert peremptorily declared that the court had no jurisdiction to make such an order, and prevailed on his brother Wythens to join with him in this opinion. Mr. Attorney took nothing by his motion, but the recreant chief justice and the recreant puisne were both next morning dismissed from their offices, to make way for the most sordid wretches to be picked up in Westminster Hall—Sir Robert Wright and Sir Richard Allibone, a professed Papist.

[153] The two clergymen who were most applauded on this occasion were the bold one, who, refusing to obey the royal mandate, took for his text “Be it known unto thee, O king, that we will not serve thy gods, nor worship the golden image which thou hast set up;” and the humorous one, who, having said, “My brethren, I am obliged to read this declaration, but you are not obliged to listen to it,” waited till they were all gone, clerk and all, before the reading of the declaration began.

[154] More than one American advocate for treating the fugitive slave act as a law, and submitting to it as such, till repealed, has preached precisely this doctrine.—Ed.

[155] 12 State Trials, 183-523.

[156] It was supposed that he was jealous of Williams, the solicitor general, who had been promised by James the highest offices of the law if he could convict the bishops. This may account for a sarcasm he levelled at his rival during the trial. Williams, having accounted for a particular vote of the House of Commons in the reign of James II., when he himself was a member and suspected of bribery, said “there was a lump of money in the case.” Wright, in referring to this, observed, “Mr. Solicitor tells you the reason, ‘there was a lump of money in the case;’ but I wonder, indeed, to hear it come from him.” Williams, understanding the insinuation, exclaimed, “My lord, I assure you I never gave my vote for money in my life.”

[157] A similar and alarming reaction towards despotism has exhibited itself in America since the passage of the fugitive slave act of 1850, in the combination of so many distinguished jurists and divines to denounce the doctrine of a “higher law,” and to advocate the “divine right” of Congress to make enactments according to its own pleasure and judgment, which enactments are to take precedence as rules of conduct of the individual conscience, which it is attempted to silence by stigmatizing it as a prejudice. Not only does there seem reason to dread that we may soon be under legislators and an executive who, believing in the divine right of those in authority, will not only applaud but act upon the principles of arbitrary government, we lately have been and still are, so far as the federal executive and the federal Senate are concerned, under precisely such ministers and legislators; and having lately had some such experience of the practical results of such principles in the administration of justice, what more natural than to compare our sufferings with those of our British forefathers, and to seek to learn from their experience the natural cure for such evils?—Ed.

[158] Jane Johnson’s suggestions, on the ground that she was a stranger to the proceeding, were allowed no weight towards the liberation of Williamson, and were refused admittance on the files of the court. At the same time, the suggestions of Mr. Cadwallader, another stranger, were eagerly clutched at and put upon the record, with a view to better the position of Judge Kane.

[159] The account of the final proceedings is from the Philadelphia Evening Bulletin.

---

Transcriber’s Note:

Footnote 39 appears on page 96 of the text, but there is no corresponding marker on the page.

Mismatched quotation marks in the original were not corrected.

---

*******

This and all associated files of various formats will be found in:
/4/0/0/7/40076

Updated editions will replace the previous one--the old editions will be renamed.

1.F.

1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a defect in this electronic work within 90 days of receiving it, you can receive a refund of the money (if any) you paid for it by sending a written explanation to the person you received the work from. If you received the work on a physical medium, you must return the medium with your written explanation. The person or entity that provided you with the defective work may elect to provide a replacement copy in lieu of a refund. If you received the work electronically, the person or entity providing it to you may choose to give you a second opportunity to receive the work electronically in lieu of a refund. If the second copy is also defective, you may demand a refund in writing without further opportunities to fix the problem.

1.F.4. Except for the limited right of replacement or refund set forth in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.

1.F.5. Some states do not allow disclaimers of certain implied warranties or the exclusion or limitation of certain types of damages. If any disclaimer or limitation set forth in this agreement violates the law of the state applicable to this agreement, the agreement shall be interpreted to make the maximum disclaimer or limitation permitted by the applicable state law. The invalidity or unenforceability of any provision of this agreement shall not void the remaining provisions.

The Foundation's principal office is located at 4557 Melan Dr. S. Fairbanks, AK, 99712., but its volunteers and employees are scattered throughout numerous locations. Its business office is located at 809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up to date contact information can be found at the Foundation's web site and official page at www.gutenberg.org/contact

The Foundation is committed to complying with the laws regulating charities and charitable donations in all 50 states of the United States. Compliance requirements are not uniform and it takes a considerable effort, much paperwork and many fees to meet and keep up with these requirements. We do not solicit donations in locations where we have not received written confirmation of compliance. To SEND DONATIONS or determine the status of compliance for any particular state visit www.gutenberg.org/donate

While we cannot and do not solicit contributions from states where we have not met the solicitation requirements, we know of no prohibition against accepting unsolicited donations from donors in such states who approach us with offers to donate.

International donations are gratefully accepted, but we cannot make any statements concerning tax treatment of donations received from outside the United States. U.S. laws alone swamp our small staff.

Most people start at our Web site which has the main PG search facility: www.gutenberg.org

                                                                                                                                                                                                                                                                                                           

Clyx.com