The national era. [volume] (Washington [D.C.]) 1847-1860, 1855-09-27
THE WHEELER SLAVE CASE.
Opinion of Judge Knox-in the Matter of the
Petition of Passmore Williamson for Writ of
Habeas Corpus.

the majority of this Court, refusing the writ OF
hd6eds corpus, and shall state the reasons why,
In my judgment, the writ should be granted.
This application was made to the Court whilst
holding special session at Bedford, on the
18th 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 10th 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
L may as well remark here, that upon the
presentation of the petition l was In favor of
awarding the habeGS 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 of
the discharge, and, moreover, if necessary, We
could, after the return, have examined into the
facts of the case.
| am in favor of granting this writ, first, be-
cause L believe the petitioner has the right to
demand it at our hands. From the time of
Magma Charta, the writ of hdbe0S corpus has
been considered writ of right, which every
person is entitled to, e.c merito justictd. 81 But
the benefit of it." says Chancellor Kent, "was
in a great degree eluded in England prior to
the statute of Charles III, as the Judges only
awarded it in term time, and they assumed
discretionary pO,cer Of dwdrding or refusing
i"-2 Kent Commentaries, 26. And Bacon
says, Notwithstanding the writ of hdbeas
corpus be a writ of right, and what the subject
is entitled to, yet the provision of the law here
in being in a great measure euded by the
Judge, as being only enabled to award it in term
time, rs also by an imagined notion of the
Jattges that they had discretionary power of
granting or refusing it, the act of 81 Charles
III was made for remedy thereof.
| am aware that both in England and this
country, since the passage OF the statute of
Charles III, it has been held that where it clear
ly appeared that the prisoner must be remand
cd, it was improper to grant the writ; but 1
know of no such construction upon our act OF
18th February, 1875. The people of The United
States have ever regarded the privileges OF the
kabeds corpus as a most invaluable rlght, 10
secure which. an Introduction against its suspen-
sion, "unless when in cases OF rebellion or IN
vasion the public safety may require it, Is IN
serted in the organic law Of the Union, and, in
addition to our act of 1875, which is broader
and more comprehensive than the English stat
ute, provision in terms like that in the Con-
stitution of the United States is to be found in
the Constitution OF this State.
II is difficult to conceive how words could be
more imperative in their character than those
to be found in our statute of 1885. The Judges
named are authorized and required, either in
vacation term time, upon the due applica-
ton of any person committed or detained for
any criminal or supposed criminal matter, ex-
cept for treason or felony, or confined or re-
strained of his her liberty, under any color or
pretence whatsoever to award and grant a hd-
beas corpus, directed to the person or persons
hoo tod ha offs
turnable Immediately. And the refusal or neg
lect to grant the writ required by the act to be
granted renders the Judge so neglecting or re-
fusing liable to the penalty of three hundred
pounds.
L 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
Il neglect refusal to grant the writ in vaca
ton time, and from this discretionary power
to refuse it in term time was inferred but an
act of Assembly does not limit the penalty to
refusal in vacation, but is sufficiently compre-
hensive to embrace neglect or refusal in vaca-
ton or in term time.
| have looked in vain through the numerous
cases reported in this State to find that the writ
ever denied to one whose application was in
due form, and whose case was within the pur-
view of the act of Assembly.
In Respublica rs. Arnold, 3 Yates, 263, the
writ refused because the petitioner not
restrained of his liberty, and therefore not with
in the terms of the statute; and in ex parte
Lawrence, 9th Binney, 304, it was held that
the act of Assembly did not oblige the Court to
grant a h0beas corpus where the case had
already been heard upon the same evidence by
another court. Without going into an examina-
ton of the numerous cases where the writ has
been allowed, j believe it can be safely affirmed
that the denial of the writ in a case like the
present is without 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 APP
pears To me to be in direct violation of the law
itself.
Ii may be said that the law never requires
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 writ Of h0beds corpus pre-
vious 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 prisoners dis
charge. But this can in no wise pre- udice the
petitioner right to the writ which he now de-
| mands. 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 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 | aver that the writ of hdbeds cor
| pus, at su6jicienduDu, is a writ Of right, / do
not wish to he understood that it should issue
as 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. i,
may be refused, if, upon the application itself
it appears that, if admitted to be true, the ap
plicant is not entitled to relief; but where, az
IN the case before u.s. the petition alleges an il
legal restraint of the petitioners liberty, under
an order from a Judge beyond his jurisdiction
we are bound in the first place to take the allie
cation as true; and so taking it, a probable
cause is made out, and there is no longer a dis
cretionary power to refuse the writ. Whethe
the allegation of the want of jurisdiction is tru,
or not is determinable only upon the return O
the writ
If one has averred in his petition what i
true, would afford him relief, it is his contitution
al right to be present when the truth of his allie
cations is inquired into; and it is also his I'm
doubted right, under the habeas corpus act, t
establish his allegations by evidence to be in