Atrocious Judges Part 20

On Tuesday, the 31st of July, 1855, your pet.i.tioner presented to the Hon.

Chief Justice of this court a pet.i.tion for a _habeas corpus_, which was refused.

Inasmuch as your pet.i.tioner 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 ent.i.tled 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 pet.i.tioner respectfully represents that he is clearly ent.i.tled 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 pet.i.tioner, 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 pet.i.tioner'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 pet.i.tioner, that he is absolutely ent.i.tled at law to the writ for which he now prays.

On the hearing there will be endeavored to be established on behalf of your pet.i.tioner, 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 const.i.tution 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 pa.s.sing 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 a.s.sumed 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 pet.i.tioner submits that when the circ.u.mstances 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 pet.i.tioner, commanding him to produce the bodies of Jane, Daniel, and Isaiah, and that such writ was void; that your pet.i.tioner 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 pet.i.tioner 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 pet.i.tioner, 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 pet.i.tioner now applies, praying that a writ of _habeas corpus_ may be issued, according to the act of a.s.sembly 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 pet.i.tioner, to do and abide such order as your honorable court may direct.

And your pet.i.tioner will ever pray, &c.

Pa.s.sMORE WILLIAMSON.

_Moyamensing Prison, August 9, 1855._

No. II.

_The Opinion and Decision of Judge Kane, referred to in the foregoing pet.i.tion._

_The U. S. A. ex. rel. Wheeler_ agt. _Pa.s.smore 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 Was.h.i.+ngton 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, Pa.s.smore Williamson came up to the party--declared to the slaves that they were free--and forcibly pressing Mr. Wheeler aside, urged them to go ash.o.r.e. 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 const.i.tution 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 a.s.sertion that it was not his hand that made the unlawful a.s.sault, 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 inst.i.tutions 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 a.s.sault 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 pa.s.sing 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 a.s.serted under the laws of that state, because he has found it needful or convenient to pa.s.s 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 a.s.sert, 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 a.s.sert 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.