The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-13


loudly cheered and warmly congratulated by many o
the audience which separated evidently highly plea
and instructed at the review of the life Of who
was true type of his country its greatness ant
sadness.
The Wheeler Slave Case.
THE DECISION OF JUDGE KANE IN THE PAssMoRE
WILLIAMSON CAsE-THE PETITION OF JANE JOHN
SON REFUSED.
From the Philadelphia Bulletin, Oct. 12.J
This morning Judge Kane delivered his opinion in the
case Of the application of Jane johnson, the slave
man whose departure from the custody of John H
wheeler, at Walnut street wharf, some weeks since
caused much excitement and led to the Imprisonment
of Passmore Williamson -
In the matter of certain prayer purporting to be
suggestion, &C., from Jane Johnson Before entering
upon the question INN edatey before at this time Il
Is proper that should advert the past action of this
Court in the of Passmore williamson and to the
considerations that led to It, do this the rather, be-
cause in some of the judicial reviews to which it has
been submitted colaeray after an er pare argument
does not to to have been fully apprehended.
begin with the writ which originated the proceeding
The writ of habeas corpus is Of immemoral antiquity
1t deduced by the standard writer's the English law
from the great charter of King John is nquestiona
BILE however, that 1t is substantially of much earlier
date and may be referred without impr0babty to the
period of Roman INVASION Like the trial by jury, it
entered into the institutions of Rome before the Christian
sere Of TO
which gave form to the British constitution 1t
claimed as the birth-rght of every Engshman and
ancestors brought it with them such to this country
At the common law, 1t issued whenever citizen was
denied the exercise Of his personal liberty was
prvcd of his rghtful control any member OF his
household his WIFE, his child his ward his servant.
1t issued from tie courts of the sovereign and in his name
and at the instance Of any who invoked it. either
himself another. II commanded, almost in the words
Of the Roman edict ("De hbero homine exhibeude" "
that the party under detention should be produced before
the court there to wait its decree 1t left discretion
with the party to whom It addressed. He not
to constitute himself tho Judge Of his rights Of
his conduct but to bring In the body and to declare
the WHEREFORE he had detained IT. and the Judge
then to determine whether that sufficient
in law or not. Such in America as well as England,
the well known, universally recognized writ of ha ,eas
co1 T%s. ~. v.s.-., con.,..,.. ,., .,,
constitution for the United States, proposition was
submitted to IL by Of the members that sthe priv
egss and benef Of the writ Of habeas corpus shall be
enjoyed in this government in the most expeditions and
atuie except upon the most urgent and pressing
sions." The committee to whom this was referred for
consideration would eem to have regarded the privilege
Of this Wi, too definitely implied in the idea Of free
government to need formal assertion confirmation; for
the privilege affirmed, and retained only much as
excluded the question of s suspension from the ordinary
range Of Congressional legislation.
The convention itself must have concurred in their
views; for in the constitution, as digesed and finally
ratified andas II stands there is neither enactment
nor rec gnon of the privilege Of this writ except
il implied in the provision that shall be suspended
1t stands then under the constitution Of tue United
States II was under the common law of English Ameri
caan ndcfeasibe privilege above the sphere OF ordna
ry legislation.
do not think II necessary to argue from the words of
this article, that the Congress denied the power Of
limiting restricting qualify the right whichlthey
thus forbidden to suspend do not indeed that
there be a restriction limitation Of privilege
which may not be essentially suspension of it, to
extent at least, under circumstances in refer
ence to some OF the parties who might otherwise have
enjoyed it, And has appeared to that IL Congress
had undertaken TO deny altogether the exercise OF this
writ by the dera Courts or to limit its exercise to the
few and rare that might peradventure ind their
way to particular court to declare that the
writ should only issue in this that class of cases to the
exclusion Of others in which It might have issued at the
sion that the ancient and venerated privilege Of the writ
Of habeas corpus had not been in some degree suspended
If not anpuled
But there has been legislation attempted legisla
lii by Congress that could call for expansion Of this
train OF reasoning.
There was one other writ which in the more recent
contests between the people and the King bad contrbu
the witt Of scire Facas which had been Employed to
indicate the rights Of property BY vacatng the onopo
lies Of the crown: Like the writ Of habeas corpus il
founded itself the concessions of Magma Chara and
the two were the proper and natural compliments Of
each other.
The first Congress 20 regarded them The protection of
the citizen against arbitrary exaction and unlawful
srant the essential object of all rghtful govern
ment would present itself the first great duty Of the
courts OF justice that about to be constituted And
IT, in defining the Jurisdiction Of the tribunals, 1t
were thought proper to sgnaze two wrts out Of the
many known to the English law, within their unqua-
lifted competency It would natural that those two
should be selected which boosted their origin from the
charter Of Fngrh liberties, and had been consecrated
for ages in the aectonate memories OF the people
their safeguard against oppression.
This consideration has interpreted for the terms Of
Very after had been advanced to the BENCH was
called upon TO issue the writ Of habeas corpus at the in
stance Of negro who had been arrested fugitive
from labor II was upon the force of the argument to
which advert that then awarded the process; and
fro that day TO this often as 1t has been invoked and
awarded in similar cases that have been before me- my
authority to award IL has never been questioned.
The language Of the act Of Congress reflects the history
Sess. l. ch 20 sec is that all the before mentioned
Courts of the United States he Supreme Circuit and
Dstrict shal have power to issue wrts OF cire facia
habeas corpus and all other wrts not ecaly provided
by statute which may be necessary for the exercise
their respective jurisdictions and agreeable to the
am aware that II has sometimes been commended or
assumed without seems to me- just regard to the
grammatical construction Of these words that the con
the wrs especially named among the rest, and that
the federal Courts only issue the writ OF habeas
Of an otherwise delegated jurisdiction !; in other
words that II Is subsidiary TO some original process
pending suit.
That act excepted from the operation Of its provisions
the domestic slaves Of delegates in Congress- OF foreign
Ministers of persons passing through scourning In
the State and not becoming residents therein, provided
such slaves detained in the State longer than six
months The act Of 1s47 repeated much Of the act Of
1850 A. authorized masters and Of slaves bring
and retain their slaves within the commonwealth for the
period Of ak months or Tor any period q time xhassvsr
owperss passing through our territory II applied to
pcsons resident and persons sojourning who brought
sons and their rights OF property the State had lawful
dominion but L left the right OF transit Tor property
person. over which II had jurisdiction, just as 1t
before stood under the constitution OF the
United States and the law OF nations.
This brings 10 the second part OF the position a.
hrmed In the Courts opinion, namely the right Of citi
the territory of another State In which the institution
Of slavery Is not recognized.
need not say that before the compac of union
formed between the States, each Of them aJso
lutcy sovereign and independent community and that
except so far as their relations to each other and to for
ton each Of them remains As such a bound BY
that great moral code, which because Of Ia universal
NOT do freed from federatvc restrictions IL cannot do
now every restraint upon Its policy which duty 20 other
states would In that case involve binds stu just AZ