The southern press., 1851-09-04


Judge Conking said he did not believe hs
should be able to decide the case before thu
morning CT the second day thereafter, but tha
he should endeavor To do it vt that time, whici
be accordingly did, by delivering the following
Judgment
CoSKLIsG IAN order nisi having beer
granted by me several days ago, for writ o
habsas corpus ad sutjiciendisni, to bring befor,
me the body Of John Davis, for the purpose o
inquirng into the legality OF his confinement il
the custody OF one OF the deputy marshals q
this district, and the case having been fully ar
gued by counsel and considered by me, | mn
now to declare my opinion of the law there
upon.
The case is one in its nature calculated, as
we know by recent experience, TO arouse the
passions and prejudlces of men In this part ol
the Union; and this tendency ia the present in
stance, has been unhappily iofiamed by an ex.
traordinary incident reported to have attended
the original arrest Of the petitioner But the
circumstances to which have alluded, however
deporable, it is scarcely necessary TO observe,
can have no Legitimate influence whatever upon
| the decision of the question before me, and are
! TO be remembered, ii at all, only for the purpose
of inspiring deeper sense OF judicial duty, and
greater caution in its discharge.
| If the prisoner is entitled by law to the privi-
lege of the writ of habeas corpus, it must be
awarded if not, it must b. withheld and in
neither event can the result afford any just
ground for dissatisfaction, sill less any apology
for the ind lgcnce of spirit of insubordination
to the laws of the land. IL is proper ut the out
set to observe, that as | hoped and expected,
when the order nisi was made, the merits Of the
case are now fully before me as they could
be on the return of writ of habeas corpus,
shoul one be granted. The real question to be
decided therefore is, whether the petitioner is
entitled to his discharge; for it is obvious, as
well an established rule, that when, upon an
application for habeas corpus, it appears that
it would be fruitess TO the petitioner if allowed,
it is not to be granted.
Before proceeding to an examination Of the
merits Of this application, it may not be amiss
to advert to the source of the power which am
called upon to exercise. The government of
the United States is one Of expressly delegated
powers, and ifs functioDares can exercise no
authority except such as, either in terms or by
| reasonable intendment, has been conferred by
the Constitution, or by laws passed in accord
ance Herewith. To guard against possible re-
srictions of the great privilege of habeas corpus
il was deemed expedicnt, by an express provision
Of the Constitution, to forbid its suspension,
unless when, in Of rebellion or invasion, the
public safety might rcqnreit. With this eycep-
ton, it was left, as one of the elements or incl
dents Of the judicial power, to be regulated bv
law; and in order to give it vitality, it was ne
cessary for Congress to confer the power to grant
it, and to designate the iunctionaries by whom
this power should be exercised. This was done
the 18th section of the judicial act Of 1880,
which, as it has been authortatively interpreted,
invests all the conrts of the United States, and
the several judges thereof, with the power to
issue this writ for the purpose Of inqurng
into the cause of commitment" The act does
not prescribe the cases in which this form of
remedy may be resorted to, nor does ii define
the power Of the court or judges in cases where
! it lies Recourse for these purposes must
therefore be had to the common law, and espe-
cially to the celebrated habeas corpus act Of 81,
Charles H., designed to correct and effectually
10 guard against the scandnlous evasions and
abuses by which the practical efficacy of the
writ of habeas corpus had become in great de-
4 -ree destroyed duling the arbitrary reign of the
Stuarts. 3 Black. Comm l30-l3S; er partt
Bollman ~ Swartwout, 4 Cranch's r., 10, e
! Conden's r., 33;) er parie Watkins, 8 Peters
r 1893, 20l, 2o2.
! Ills honor examined at length, the authori
ties cied at the argument, and especially III,
cases er parle kearney, Wheat r. 3S and
ca parie Watkins, Peters X. 1913 ''the latter
being mainly relied on by the counsel for the
claimant and which establish the principle that
when by court of competent jurisdiction,
Judgment in It's nature final, has once been pro-
nounced, it-cannot be reviewed on habeas cor.
Pus; and he then proceeded as follows:
II is upon this principle that the claimant re
lies, and the question is, whether or not it furn
ishes the rule of decision for the present ease.
For the purpose of determining this question
il is proper to examine into the nature of the
adjudication which it is proposed to bring under
review.-The adjudication was made by one Of
the commissioners Of the United States for this
judicial district. The office of commissioners
was created by an act of Congress passed in
1912, by which the several circuit courts were
authorized to appoint suitable persons to take
acknowledgement of bail and affdavits, in civil
causes depending In such courts and by an act
passed few years later, the persons so appoint
ed were authorized to perform the like services
in causes in the district urts.
BY this latter act and other acts subsequently,
passed, other powers were successfully conferred
upon these officers; and lastly, by the first sec
ton of tho act of September the 18th, 1850,
known as the Fugitive slave act, "they are au-
thorized and required to exercise and discharge
all the powers and duties conferred by this act
The fourth section further declares that the
commissioner :" shall have concurrent jurisdic-
ton with the judges of the circuit and district
courts of the United States, in their respective
circuits and districts" BY the sixth section il is
also enacted that the certificates t) be granted
under the act shall be conclusive of the right
of the person in whose favor granted, 10 remove
such fugitive to the State or territory from which
he escaped and shall prevent all molestation of
such person or persons by any process issued by
any court, judge, magistrate, or other person
whatsoever"
Now whatever ground for doubt, il any, might
have existed, independently Of this enactment,
concerning the legal force and effect of these
certificates, 1t may, think, be safely assumed
that 1t was intended by Congress to place them,
in this respect, substantially on the footing of
judgments rendered by Judicial tribunals, in
cases wthin their jurisdiction. Notwithstand
ing the wide scope of the doctrine laid down by
the Supreme Court in the Watkins case, an:
also of opinion, and indeed this was distinctly
| admitted bv the learned and able counsel who