New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-10-15
TIE PASSMORE WILLIAMSON CASE,
DECISION OF JUDGE KANE.
7Hepe7,rrok or yAneJcHssos REFUSED


cspsed so much vehement end lei 70 the mprs onmeat
Of PessmoIe Williamson.
Iy1uF DIsrRI,r CouRT % THE CSIrED STATS.
liz the lna,'eT o. certain payer plporiny 10 bs
sup efstiop sc from Jsne johnson. Ee.0re enteTin,
upon the question i'm nediaeiy before he a. th!s Il ne
il is proper ihs shoud advert 70 the past action OF
this court in the ease al Passmore WI amsOn an 10
the cor dsraiiOns TIA, led 10 II. do this the rather
because in som OF the judicial reviews 10 which i: has
hem ubmitied coll literally after expl-ts nsr
il dos not 90. IN TO - have been fully ap9r=hended.
begin witt tA5 writ, which originated the proceed
ing.
lie wit OF habeas corpus Of irnna ,al aliqpi-
~ l. il Geduced by the standard writer's on tle Ia
is upques'opabe boa ever, that i is substantially Of
much caller date; sud i may be referred without in
probability 20 The Period OF tie Roman Invasion.
Like the trial by jaIy i ents'e fo t1e n,g'9fs
been familiar 10 the tines of the Republic through
the long series of polite u ugglss which gave form
TO TIE British constitution, j, claimed as thu birth
right of every EDgbman, and oar ancss tors orDns1
IL " th them such 10 q IS coun'ry e.
At the common law it issued Whenever aciiizen Wis
denied the exercise of his personal liberty or was &C.
prived of bis rightfu control over any memo r OF Lis
household his wife, bis chic, b. wari, or his sar.
want. II Issued from the courts of the sovereign and
in his name ut the iIsa. &c of sDy one who invoked
it. ell or fer himself auohsr. Il comm ided, al
most IN the woIds of tie Roman ejct, thai he paty
u1der ceten ion shou he produced before TIC cOur,
there 10 await its decree II left no discretion with
the party 10 whom il was addressed. lie was lot to
constitute himself the judge OF his own rights or h'
own con Iuc: bat 70 bring in the body and to declare
tie cause whorefor he ba1 detained it, and tee judge
Was then to determine whether that cause was sum
cient in law or not. Such in AMERICA as well az m
England was tire well known, universally recognized
wit of hGteas corpus.
When the Federal convention Was engaged in
frsninq constitution for the United S.ateI, prOqO-
ston was submitted 10 it by OF the me Bars, that
"the privileges and benefits of the wit OF habeAs cor
opus shall be enjoyed 10 this Governmrn' IN the most
Expeditions aud ample manner; and shsH no, DC
suspended by the legislature ex ept up0a mo m)st
urgent ard pressing occasions 1he COMMITTEE to
vi ON this was referred fo1 coIsferasion wou seem
TO have regarded TIE privilege OF this writ as TOO dis.
ipctiy implied in ire idea of fee government 10 need
formal assertion COMBINATIONS tor they struck out
that part of the proposed article in which the plyi ge
was sffhmed, and retsined only so much as excluded
the question Of lis suspension IRON the Ordinary range
of cong RI sslonal les isla:ion.
TIE conyep n itse'f must have cOncurIed In Their
views; for il the constitution, as digested, and dn4y
ratified, ard il stands now there is neither enact
mont nor eDtion OF the privilege OF this H. e1
cept as il is implied in the provision that tha no. be
suspeI ded. L; stands, then, under the Cone1aton OF
The United States az il was under the common Law OF
English America an in9efeasiOle privilege, above tae
spt ere of ordinary legislation.
] 90 TOT think it necessary 70 argue tom the worfs
Of this article that the Congress denied the power
of limiting restricting or qualifying the right which
they were hus fol hidden TO suspend. do not indeed
sec that there can &C u rsulcuOn OF VI q
privilege which may not DC essentially suspension OF
II, to some exten. az leas or under 80 ne cifcum-
stances, in reference to some of the plrnes who
might otherwise have enjoyed IT, And il has sppe sred
TO me that if Congress had un 1erak n TO deny alto
ceher The exercise of this writ by the federal courts
or 10 limit its exercise to the few and rare cases that
might peradventurs hnd their way 10 some one p4r-
tcular court, OF TO decae that the writ should only
issue ip this or that class of cases. TO the exclusion o.
others il wbich,it might have Issued al the common
law it would be difficult to escape the conclusion thai
the ancient and vsperated privilege OF the WI. oi
babe as corpus had NOT Deen IN come Ceree sus enucu
if DOT atnulled.
But there has been no legislation attempted
legislation by Congress- thai could call for an eI2an-
sion of this train Of reasonings.
There was one other writ which in the more recent
contests between the people and the king had contro-
uttd se nay TO the maintenance OF popular ight. III
was the writ of scire facias which had been employed
to vindieae the rights Of property by yace',nS the
nouopolies of the crown. Like the writ Of haoeas
corpus il fouud Itself on the concessions OF magma
chara and the two were the proper and natural CONF
plem ents of each other.
The first congress so regarded them. The protection
of the citizens against arbitrary e1.ction and uulsw
full restraint il is the essential object OF all right
ful governments, would present itself as the first
great duty OF the courts of Justice that were about to
be constituted. And il, in defining the jurisdiction OF
the new tribunals, il were thought proper to sndalze
two wris out of the many known to the English law
as within their unquai led competency, II woald seem
natural that those two should be selected which boast
cd their origin from the charter oil EGgsh liberties,
and had been consecraed for ages in the aectionl
memories of the people their safeguard against OPP
preston.
This consideration has interpreted for the terms
Of the sistute, which define my jurisdiction on this
subject. Very soon afer had been advanced to the
beIcb, was called upoI TO issue the wit Of habe1s
corpus, at the insaIc cf negro, who hao been ar
rested as fugitive from labor II was upon the force
of the argument TO which | now advert that then
awaIdad the process and from that day 10 this often
as has been invoked and awarded in similar ca es
that have been before me- my authority TO awi'i it
has never teen questioned.
The language of the act Of Congress reflects the
history Of tie cor s;tutonsl provision. /: enacts
First C0Rsr. Sess. eh 90 SEC ~ "thst ell the be-
fo,e mentioned courts f the United States tie Su
Prone, Circuit and District shall have power 10
wits Of scre acas ha6ess corpus, and all other
wits Lot specially provided for by statute which may
be necessary Tor be exercise of their respective uris
dictions aid agreeable 10 tee principles auc usases OF
law"
am swsIe tina: il has sometimes been contended or
assumed without, as seems to me, just regard 70
the gramma;ia al cons ucton OF 4 csc words thai the
concluding limitation applies to all the process of tue
courts, the two writs especially Dened among the res,
and that he Fe1ea courts can only issue the writ CT
hGbeas corpus when ii had become necessary to tue
extIcise OF otherwise delegated juIisdictioni in
other words, tha it is subsidiary to original pro-
cess or pending suit.
il is obvious, that If srch had been the intention Of
tie law makers il unnec ssary TO name tue writ Of
baDeds corpus al all LOT Tue sler pnraSs al icTEs
necessary" Ac would IN that case have covered
then aiming. But there objections to his reading
moIe important than any that found them:elyes on
grammatical rules.
The aoi6S that INN diately follow give TIE power OF
isuirg The wit TO every Judge, for the purpose of
iuqnirDg into the canes U: g commitment Now,
COMMITMENT pICsupposos judi cial action, and ths "a
ton il ia tie Object Of he WI. TO review Can it o.,
that single judge, siog such, re61 imioe the
Ct cttancr, which has resulted rom ju lieial
action and "a, Therefore, prma tace lawful ooe; aud
&c: ;5st Il court, Of which be il mamber cannot