The national era. [volume] (Washington [D.C.]) 1847-1860, 1855-09-27

Caik, d nar. anu D., 0rlHltn vs.. riaHiCAi .
Cranch, 8; Com. VS.. Smith, Sup. Court Penn,
first Wharton Digest. 32l Com ex. relatione
Lockington vs.. the Tailor, &C., Sup. Court man.
uscript, 1914, Wharton's Digest, vol. LIST, 32l j;
Albec VS.. Ward, Mass, sc.
Some of these cases decide that the act OF a
Court without jurisdiction is void; some, that
the proper remedy for an Imprisonment by
Court having no Jurisdiction is the writ OF ha-
beds corpus; and others, that it may issue from
a State Court, to discharge prisoner commit
ted under process from Federal Court, If 1t
clearly appears that the Federal Court had no
jurisdiction of the case; altogether, they estab-
Iish the point that the petitioner is entitled to
relief if he is restrained of his liberty by Court
acting beyond its Jurisdiction.
Neither do conceive it to be correct to say
that the applicant cannot now question the Ju-
risdiction of the Judge of the District Court, be-
cause he did not challenge it on the hearing.
There are many rights and privileges which a
party to a judicial controversy may lose II not
claimed in due time, but not so the question OF
jurisdiction this cannot be given by express
consent, much less will acquiescence for time
waive an objection to it. See U. 3. Digest,
vol. /, D. 639, Pl 81, and cases there cited. 1t
would be a harsh rule to apply to one who is IN
prison "without bail or mainprize," that his
omission to speak on the first opportunity for
ever closed his mouth from denying the power
of the Court to deprive him of his liberty. de-
nv that the law is trap for the feet of the I'M
wary. Where personal liberty is concerned, it
is shield for the protection of the citizen; and
it will answer his call, even if made after the
prison door has been closed on him.
If, then, the want of jurisdiction is fatal, and
the inquiry as to its existence is still open, the
only question that remains to be considered Is
this: Had the Judge of the District Court for
the Eastern District of the United States power
to issue the writ of hdbedS corpus, directed to
Passmore Williamson, upon the petition OF John
H. Wheeler. The power of that Court to COM
NIT for a contempt is not denied, and under
stand it to be conceded as general rule by the
petitioners counsel, that one Court will not re-
examine a commitment for contempt by anoth-
er Court of competent jurisdiction; but If the
Court has no authority to issue the writ, the re-
spondent was not bound to answer 1t, and his
neglect or refusal to do so would not authorize
his punishment for contempt.
The first position which shall take, in consid-
ering the question of jurisdiction, is that the
Courts of the United States have no power to
award the writ of habeas corpus, except such as
is given to them by the acts of Congess.
"Courts which originate in the common law
possess a Jurisdiction which must be regulated
by the common law; but the Courts which are
created by written law, and whose jurisdiction is
defined by written law, cannot transcend their
jurisdiction. The power to award the writ by
any of the Courts of the United States must be
given by written law" Ex-parte Swartwout,
4th Cranch, rs; Ex.parte Barre, 2 Howard,
IS. The power of the United States to issue
writs of habeas corpus is derived either from the
18th section of the act of the oath September,
/ 7S9 or from the eth section of the act of March
2, 1888.
The section from the act of 1889 provides
that all the Courts Of the United States may
issue writs of scire fdcids habeas corpus, and
all other writs not especially provided for by
statute which may be necessary for the exercise
of their respective jurisdictions, and agreeable
to the principles and usages of law. And either
of the Justices of the Supreme Court, as well as
the Judges of the District Courts, may grant
writs of habeds corpus for the purpose of inquiry
into the cause Of commitment; but writs OF hd-
beds corpus shall in no case extend to prisoners
in Jail, unless they are in custody under or by
color of the authority of the United States, or
same, or are necessary to be brought into Court
to testify The 7th section of the act of I'd
March, 1888, authorizes either of the Justices
Of the Supreme Court, or Judge of any District
Court of the United States, in addition to the
authority already conferred by law, to grant
writs of hdbeaS corpus in all cases of prisoner
or prisoners in Jail or confinement, where he or
they shall be committed or confined on or by
authority of law for any act done or omitted to
be done in pursuance of a law of the United
States, or any order, process, or decree, of any
Judge or Court thereof anything in any act Of
Congress to the contrary Notwithstanding"
Now, unless the writ of habeas corpus issued
by the Judge of the District Court was necessa
~ for the exercise of the jurisdiction of the said
Court, or was to inquire into commitment
under or by color of the authority of the United
States, or to relieve some one imprisoned fol
an act done, or omitted to be done, in pursu
ance of law of the United States, the District
Court had no power to issue it, and commit
ment for contempt in refusing to answer it is
an illegal imprisonment, which, under our hd
beas corpus act, we are imperatively required
to set aside.
1t cannot be pretended that the writ was
either asked for or granted to inquire into any
commitment made under or by color of the au
thority of the United States, or to relieve from
Imprisonment for an act done or omitted to be
done in pursuance of a law of the United States
and therefore we may confine our inquiry sole
liz to the question whether it was necessary fol
the exercise of any jurisdiction given to tho
District Court of the United States for the
Eastern District of Pennsylvania.
This brings US to the question OF the juris
diction of the Courts of the United States, anC
more particularly that of the District Court
And here, without desiring or intending to dis
cuss at large the nature and powers of the Fed
eral Government, it is proper to repeat wha
has been so often said, and what has never
been denied, that it is a Government of emu
merated powers, delegated to it by the severa
States, or the people thereof, without capacit,
to enlarge or extend the powers so delegated
and enumerated; and that its Courts of justice
are Courts of limited jurisdiction, deriving thei
authority from the Constitution of the United
States, and the acts of Congress under the Con
stitution. Let us see what judicial power was
given by the people to the Federal Government
for that alone can be rightly exercised by it
Courts.
"The judicial power" (says the second sec
ton of the third article) "shall extend to al
stitution, the laws of the United States, ant
treaties made or which shall be made unde
their authority; to all cases affecting ambassa
doris, other public ministers, and consuls to al
cases of admiralty and maritime jurisdiction
to controversies to which the United State
shall be party; to controversies between tw
| or more States, between a State and citizen o
another State, between citizens of differen
States, between citizens of the same State claim
ing lands under grants of different States, an,
between a State or the citizen thereof and 70,
| eign States, citizens, or subjects"
The amendments subsequently made to thi
article have no bearing upon the question ur
der consideration, nor is it necessary to exam
inc the various acts of Congress comforting il
risdiction upon the Courts of the United States
for no act of Congress can be found, extending
the jurisdiction beyond what is given by til
Constitution, so far as relates to the questio
| we are now cons;derino And &c Sncb on or