Atrocious Judges Part 23

I have not had either time or opportunity to examine all of the cases cited, but, as far as I have examined them, they decide this and nothing more--that where a court of competent jurisdiction convicts one of a contempt, another court, without appellate power, will not reexamine the case to determine whether a contempt was really committed or not. The history of punishments for contempts of courts, and the legislative action thereon, both in our State and Union, in an unmistakable manner teaches, first, the liability of this power to be abused; and second, the promptness with which its unguarded use has been followed by legislative restrictions. It is no longer an undefined, unlimited power of a star chamber character, to be used for the oppression of the citizen at the mere caprice of the judge or court, but it has its boundaries so distinctly defined that there is no mistaking the extent to which our tribunals of law may go in punishment for this offence.

In the words of the act of Congress of 2d March, 1831, "The power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, jurors, witness, or any other person or persons, to any _lawful_ writ, process, order, rule, decree or command of said courts."

Now, Pa.s.smore Williamson was convicted of a contempt for disobeying a writ of _habeas corpus_, commanding him to produce before the district court certain persons claimed by Mr. Wheeler as slaves. Was it a lawful writ? Clearly not, if the court had no jurisdiction to issue it; and that it had not I think is very plain. If it was unlawful, the person to whom it was directed was not bound to obey it; and, in the very words of the statute, the power to punish for contempt "shall not be construed to extend to it."

But, says the opinion of the majority, he was convicted of a contempt of court, and we will not look into the record to see how the contempt was committed. I answer this by a.s.serting that you cannot see the conviction without seeing the cause: 1, the pet.i.tion; 2, the writ and the alias writ of _habeas corpus_; 3, the return; and 4, the judgment.

"It is ordered and adjudged by the court that the said Pa.s.smore Williamson be committed to the custody of the marshal without bail or mainprize, as for a contempt in refusing to make return to the writ of _habeas corpus_ heretofore issued against him at the instance of Mr. John H. Wheeler." As I understand the opinion of a majority of my brethren, as soon as we get to the word contempt the book must be closed, and it becomes instantly sealed as to the residue of the record. To sustain this commitment we must, it seems, first presume, in the very teeth of the admitted fact, that these were runaway slaves; and second, we must be careful to read only portions of the record, lest we should find that the prisoner was committed for refusing to obey an unlawful writ.

I cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the State. While in contests involving the right of property merely, I presume we may still treat these judgments of the United States courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to p.r.o.nounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment p.r.o.nounced by a court of competent jurisdiction, acting within the admitted sphere of its const.i.tutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the Court of Queen's Bench in England, and this upon the authority of decisions p.r.o.nounced in cases not at all a.n.a.logous to the one now under consideration. I believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of _habeas corpus_ to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ should be awarded.

1. At common law, and by our statute of 1785, the writ of _habeas corpus ad sufficiendum_, is a writ of right, demandable whenever a pet.i.tion in due form a.s.serts what, if true, would ent.i.tle the party to relief.

2. That an allegation in a pet.i.tion that the pet.i.tioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue.

3. That where a person is imprisoned by an order of a judge of the district court of the United States for refusing to answer a writ of _habeas corpus_, he is ent.i.tled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of _habeas corpus_ by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction.

5. That the courts of the federal government are courts of limited jurisdiction, derived from the const.i.tution of the United States and the acts of Congress under the const.i.tution, and that when the jurisdiction is not given by the const.i.tution or by Congress in pursuance of the const.i.tution, it does not exist.

6. That when it does not appear by the record that the court had jurisdiction in a proceeding under our _habeas corpus_ act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a rule for a _habeas corpus_, all the facts set forth in the pet.i.tion tending to show want of jurisdiction are to be considered as true, unless they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a slave to a free State, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the State into which he is thus brought.

9. That if a slave so brought into a free State escapes from the custody of his master while in said State, the right of the master to reclaim him is not a question arising under the const.i.tution of the United States or the laws thereof; a judge of the United States cannot issue a writ of _habeas corpus_ directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge.

10. That the district court of the United States for the eastern district of Pennsylvania has no jurisdiction because a controversy is between citizens of different States, and that a proceeding by _habeas corpus_ is, in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to "lawful" writs.

12. That where it appears from the record that the conviction was for disobeying a writ of _habeas corpus_, which writ the court have no jurisdiction to issue, the conviction is _coram non judice_, and void.

For these reasons I do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for.

No. V.

_How Pa.s.smore Williamson was finally discharged._

Previously to the application on Williamson's behalf to the supreme court of Pennsylvania, Jane Johnson, the woman who, and her two sons, were claimed as slaves by Wheeler, had appeared before Judge Culver of New York, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that Williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to a.s.sure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent Wheeler from detaining her. The same facts she had afterwards testified to in open court in Philadelphia, on the trial for a.s.sault and riot of the colored men who had a.s.sisted her to escape.

After the failure of the application to the supreme court of Pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of Williamson's false imprisonment, but acting wholly independently of him, induced Jane Johnson to present a pet.i.tion to Judge Kane, setting forth all the above facts, and praying that as the writ of _habeas corpus_ obtained by Wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. After argument upon the question of allowing this pet.i.tion to be filed, Judge Kane delivered a long and very elaborate opinion, embracing three princ.i.p.al topics. He began with a very elaborate eulogy upon the writ of _habeas corpus_, coming with a very singular grace from a judge who had prost.i.tuted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and a.s.sisted Jane Johnson to vindicate her rights under the laws of Pennsylvania. Next followed Judge Kane's version of his proceedings in committing Williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the pet.i.tion of Jane Johnson, or to pay any attention to its suggestions, on the following grounds:

"The very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. She asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. On the contrary, her counsel have told me expressly that Mr. Williamson has not sanctioned her application. She has therefore no _status_ whatever in this court."

After the delivery of this opinion a little episode followed, evidently got up with a view to relieve Judge Kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding:--

"On the conclusion of the delivery of this opinion, John Cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circ.u.mstances attending the commitment of Pa.s.smore Williamson, a proposition was made to amend the return to the writ, when Judge Kane replied:--'I will not receive an amendment now, but will be prepared to receive it when the record has been completed.'

"No such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts.

"Judge Kane replied that his (Mr. Cadwallader's) impression was correct.

He had been prepared to receive a supplementary return from Mr.

Williamson's counsel, but none had been offered.

"Mr. Cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. He was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation.

"Mr. Cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record."[158]

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for Williamson, appeared in Judge Kane's court, and asked leave to read a pet.i.tion from Williamson. This pet.i.tion contained a statement of the facts in relation to his connection with the liberation of Jane Johnson and her children, similar to that contained in his pet.i.tion to the supreme court of Pennsylvania, Appendix. No. I. The following account of the proceedings on this motion is taken from the _Philadelphia Gazette_:--

Judge Kane said, 'The court cannot hear an application from a party in contempt, except to absolve him. I understand there is an application, by pet.i.tion, in the name of Pa.s.smore Williamson, which is not to relieve himself from the contempt, but--'

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane said: 'Let us not be misunderstood--I am not prepared to receive an application from Pa.s.smore Williamson, who is incarcerated for contempt of this court, unless such pet.i.tion be to relieve himself from contempt by purgation. I am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him.

'If, therefore, the counsel arise to present an application from Mr.

Williamson, it must be for purgation. The counsel do not inform the court whether they are here to purge Mr. Williamson from the contempt. As at present advised, I have no power to hear their application, whatever it may be, in his behalf.'

Mr. Meredith said there were two kinds of contempts; one of personal insult to the bench, with which Pa.s.smore Williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement.

He did not believe it was in the power of the entire press of the United States, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court that Pa.s.smore Williamson was desirous of testifying now his willingness to obey the exigencies of the writ of _habeas corpus_. If so, he had a simple, straightforward, honorable course to pursue. He has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. What is understood by 'purgation' is not simply a mere form of words. It matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the a.s.surance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which a.s.serts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. He said he would hear the counsel upon the question whether the court can legally hear any other pet.i.tion than the one of purgation.

The respondent's counsel then proceeded to argue the right of the court to hear a pet.i.tion, other than of purgation, from Pa.s.smore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English or American, where persons were held guilty of a contempt in responding to a writ of _habeas corpus_ unless the return was evasive. He referred to a case in 3 Mason, where, in a return to a writ before Judge Story, there was clearly an evasion shown on the face of the return.

Under these circ.u.mstances, Judge Story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. Mr. M. submitted whether it was not proper to subject the pet.i.tioner in this case to a further questioning. He could not find in English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer interrogatories. Why had they not been propounded in the form that the court might think proper to put them? No case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. How is he to answer what has not been filed?

According to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. If another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt.