The southern press., 1851-09-06


Judge Conklng said he did not believe he
should be able to decide the case before the
morning CT the second day thereafter, but that
he should endeayor to do it at that time, which
he accordingly did, by delivering the following
Judgment
CoNKLING J.-An order niSi having been
granted by me several days ago, for writ OF
habsaS corpus ad SuHiciendam, to bring before
ME the body of John Davis for the purpose OF
inquiring into the legality of his confinement in
the custody of one of the deputy marshals OF
this district, and the case having been fully ar
gued by counsel and considered by me, am
now to declare my opinon OF the law there
upon. s."
The case is one in its nature calculated as
we know by recent experience, to arouse the
passions and prejudices of men in this part of
the Union; and this tendency, in the present in
stance, has been unhappy ntlamed by an eS-
traordinary incident reported to have attended
the original arrest of the petitioner. But the
circumstances to which have alluded, however
deplorable, it s scarcely necessary to observe,
can have no legitimate influence whatever npon
the decision Of the question before me, aud are
to be remembered, if at all, only for the purpose
Oh Inspiring Il uttpeT seHSc JuulCial dilu
greater caution in its discharge
=, Ii the prisoner is entitled by law to the privi-
lege of the writ of habeas corpus, it must be
awarded if not, it must BE- withheld; and in
neither event can the result afford any Just
ground for dissatisfaction, still less any apology
for the indulgence OF a spirit ofinsubordination
to the laws Of the land 1t is proper at the out
set to observe, that, as hoped and expected,
,vhnn tha r1a ,i w m ada the mprltS at the
case are now as fully before me as they could
be on the return of a writ of habeas corpus,
should one be granted. The real question to be
decided therefore is, whether the petitioner is
entitled to his discharge; for it is an obvious, as
well as an established rule, that when, upon an
application for n habeaS corpus, it appears that
it would be fruitless 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 functonaries 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.
strictions of the great privilege Of habeaS corpus,
II was deemed eXpedent by an express provision
of the Constitution, to forbid its suspension,
unless when, in case Of rebellion or invasion, the
public safety might require it. With this excep,
ton, it was left, as one of the elements or Incl
dents of the judicial power, to be regulated by
law; and in order TO give it vitality, it was ne.
cessary for CoDgress to confer the power to grant
it, and to designate the functionares by whom
this power should be exercised. This was done
b the l4th section of the Judicial act Of 1880,
which, as it has been authortatively interpreted,
invests all the courts of the United States, and
the several judges thereof, with the power to
issue this writ for the purpose Of inqdring
into the cause Of commitment" The set does
not prescribe the cases in which this form Of
remedy may be resorted to, nor does it 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 cTpuS act Of 81,
Charles H., designed to correct and etfectually
to guard against the scandaous evasons and
abuses by which the practical efficacy Of the
writ of haJeaS corpus had become, in great dc.
rree destroyed during the arbitrary reign of the
Stuarts. 3 Black. Comm. l30-l3S; &c parte
Bolman q Swartwout, 4 Cranch's r., IS, q
Conden's R., aS) or parte Watkins, 3 Peters
r 1913, pol, 203.
His honor examined at length, the authori-
ties cited nj the argument, ana especially the
cases er part Kearuey, 7 Wileit K 80; and
cr parte Watkins, Peters r. 1913 "the latter
being mainly relied on by the counsel fer the
claimant and which estabii,. The prnriple tia
when by court Of competent jarso,rtion,
Judgment in It's rotarr final has once been pro
nounced, it canEot he reviewed on habeas cor
puS; and he then proceeded as follows
1t is upon this principle that the claimant re
| lies, and the question ia, whether or not it furn
ishes the rrle of decision for the present case
For tae purpose Of determining this question
! it is proper to examine into the nature Of the
adjudicat on which it is proposed to bring under
revew.-The adjudication was made by ore o
the commissioners Of the United States for tIli,
| judicial district The office Of commissioner
was created BY an act Of Congress passed ir
! 1912, by which the several circuit courts wer,
authorized to appoint suitable persons to tax,
! acknowledgements of bail and allidavits in civi
causes depending in such courts; and by an acl
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 III, act Of September the 18th, 1850
known as the Fugitive slave act, "they are au
thorizcd and required to exercise and discharg,
I'll 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 respec,iv,
circuits and Districts BY the sixth section it j.
also enacted that the certificates t. be grantee
! under the act I" shall br conclusive of the rgh
Of the person in whose favor graatcd, 10 remUv,
such fugitive to The State or territory from whicI
he escaped, and shall prevent all molestation O
such person or persons hy any process issued by
any court, Judge, magistrate, or other person
! whatsoever"
! Now whatever ground f,r doubt If any, mg'
have existed, Independently C this enactment
concerning the legal force and effect of these
certificates, it may, think, be safely assumed
That it was intended by Congress to place them
! in this respect, substantially on the footing 0I
4 Judgments rendered by judicial tribunals, il
case. withia their jurisdiction. Notwithsland
ing the wide scope Of the doctrine laid down b,