The daily union., 1855-10-17
THE PAssMoRE WILLIAMSON cAsE-rHE oPIN-


In the matter prayer purporting to be
suggestion &C. from Jane Johnsonefore entering upon
the question immediately beior; this time il is proper
that should advert past action of this court in the
case Of Passmore williamson and to the considerations
that led it do this the rather because IN some OF the
judicial reviews TO which it has been submitted collateral
ly after par argument IT does not seem 70 me 10
have been fully apprehended.
begin with the writ which originated the proceeding
The writ OF habeas corpus is of immemorial antiquity
1t is deduced by the standard writer's the English law
from the great charter of King john II is unqnestona-
ble however that IL is substantially OF much earlier date
and may be referred without improbabty TO the pc
rod of the Roman invasion. Like the trial by jury, IL
entered into the institutions OF Rome before the Christian
era and had probably been familiar to the times of the
public Through the long series of political struggles
which gave form the British constitution il was claimed
the br,hrght of every Englshman and ancestors
brought il with them as such TO this country.
Al the law it issued whenever citizen was de-
MED the exercise Of mis- personal liberty deprived
of his ghttu control over any member of his household
his wife his child his ward his servant 1t issued from
the courts of the sovereign and in his name at the in
stance of any who invoked it, either for himself or
another IL commanded almost in the words of the Ro
man edicts that the party under detention should be pro-
duced before the court there await its decree LETT no
discretion with the party to whom it was addressed lie
was to constitute himself the judge OF bis own right
and of his conduct but to bring in the body, and to
declare the whereior he had detained and the
Judge was then to determine whether that suf
Client in law Such in America well England
the wellknown universally writ OF habeas
corpus
when the federal convention was engaged in framing
constitution for the United States, proposition sub
itted it by of the members that the privileges
and benefits of the writ OF habeo shall be enjoyed in
this government in the expeditions and ample
and shall not be suspended by the Legislature except
upon the most urgent and pressing occasions The COM
mttee whom this referred for consideration would
seem have regarded the privilege of this writ too
definitely implied in the idea of free government to need
formal assertion confirmation for they struck out that
part of the proposed article in which the privilege at
frmed and retained only much excluded the question
of its suspension from the ordinary range of congressional
legislation. .. !. .,.-
views for in the constitution dgcsted and finally rati
fed and it stands now there is neither enactment
recognition of the privilege of this writ except it is inn
piled in the provision that it shall not be suspended 1t
stands then under tho constitution of the United States
as it was under the common law OF English Americaan
ndeeasbe privilege above the sphere OF ordinary egs-
laton
do not think it necessary argue from the words of
this article that the Congress denied the power
limiting or restricting or qualifying the right which they
thus forbidden to suspend. | do not, indeed, see
that there be restriction limitation OF privilege
which may not be essentially suspension OF it, TO some
at least under circumstances in refer
of the parties who might otherwise have
oyed It. And II has appeared to me- that Congress had
the federal courts limit its exercise to the few and
that might peradvenrc find their way to some
particular court declare that the writ should
only issue in this that class Of cases. the exclusion of
Others in which it might have issued the law,
it would be difficult TO escape the conclusion that the
ancient and venerated privilege Of the writ of habeas
corpus had not been in some degree suspended if not
nuled.
Decn
on BY Congress that could call for expansion of this
train of reasonings.
There other writ which, in the recent con-
tests between the people and the King had contributed
sgnally the maintenance of popular right 1t the
writ of acias which had been employed TO vndcae
the rights Of property by yacatng the monopoies Of the
Crown Like the writ Of Aabeas corpus founded itself
the concessions Of Magma Charta and the the
proper and natural compliments Of each other.
The first Congress regarded them The protection of
the citizen against arbitrary exacton and unlawful
saint il is the essential object Of all rghtfn govern
men would the first great duty Of the
of justice that about to be constituted And it, in de-
fnng the jurisdiction OF the tribunals it thought
proper signalze two wris out of the many known
the English law within their unqualified competency it
would natural that those two should be selected
which boasted their origin from the charter of English lib
critics. and had been consecraed for ages in the affection
ate memories OF the people as their safeguard against OPP
preston.
This consideration has interpreted for me the terms
the statute which define my Jurisdiction this subject
Very after had been advanced to the bench
called upon issue the writ of Aa5cds corpus the in
OF negro who had been arrested fugitive from
labor 1t upon the force of the argument to which
advert that then awarded the process and from
that day this often has been invoked and awarded
in similar that have been before me- my authority
award 1t has never been questioned.
The language OF the act of Congress reflects the history
ofhe constitutional provision. enacts First Congress
courts Of the United States Ghe Supreme circuit and dis
trct shall have power issue wrts of scs acas ha-
beas copas and all other writs specially provided for
by statute which may be necessary for the exercise of their
and usages of law
that it has sometimes been contended
sumed, without it me just regard to the
grammatical construction Of these words that the conclu-
ding limitation applies all the process of the courts the
two wrs especially named among the rest and that the
federal courts only 5sne the writ of habsas corpus
when has become necessary the exercise of other
wise delegated jurisdiction in other words that is sub
sidiary to some original process pending sut
is obvious that such had been the intention of the
lawmakers 1t unnecessary to the writ of ha5eas
corpus at all for the simpler phrase all is necessary
&c would in that case have covered their meaning fully
But there objectioEs this reading important
than any that found themselves grammatical rules.
The words that Immediately follow give the power of is
SUNG the writ to every judge for the purpose Of nqnrng
into the of commitment Now, commitment pre-
suppoes judicial action and this action ii is the object
the writ to review. Can it be that single judge sitting
such, re-examine the Of detaner which
has resulted from judicial action and is therefore, rima
taee lawful one and yet that the court of which he is
member cannot inquire into the of deainer made
without judicial sanction and therefore ria acie unaw
full
Besides IL this the meaning of the act it might be
difficult TO find the to whchit should apply speak
OF the writ of hdbeas corpus dd snnd the great writ
of personal liberty referred to in the constitutions that
modification Of it which applies especially the Of
commitment the less important forms of habeas corpus
adrespondendus ad tacendum, &C, which foreign
the question do not remember to have met case either
in practice in the books where this writ could have
performed any pertinent office in pending suit There
may be such but they do TO me and incline
very strongly to the opinion that If the power the
writ of habeas corpus applies only Of statutory
risdction outrages upon the rights Of citizen
invoke exercise If such were indeed the law OF the