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From the national Jntclligencer.
SUPREME COURT OF THE UNITED STATES.
February term, HSO".
( ( Erick Bollman, and
.1 J,s*m U el Swarivvout.
On motion for a habeas corpus atl subjicien
dum, M Aitsiiall, chid justice, delivered the
opinion ol ihecourt as follows :
As pa iiminaiy to any investigation of the
merits o! this motion, this court tieeiun it pro
per to declare, that it disclaims all jmisdiction 1
not given by the eonstiuilion, or by the laws of
the United Mates.
< otirts whit h originate in the common law,
possess a jurisdiction which must he regulat
ed by their common law until some statute
siiull cluing'.’ their established principles ; hut
courts which arc created hy u mien law, anti
whose jurisdiction is tldinct! by written law,
e.uiinot transcend that jurisdiction. It is unne
* ■ sary to state the reasoning on which this
opinion i. founded, because it has been repea
tedly given by this court; and with the deci
sions bet colo: e rendered on this point, no
member of the befich has, even lor an instant,
been dissut’.died. The reasoning Irom (he
bar, in reunion to it, may be an.weicd hy the
single observation, that lor the meaning ol tlie
term ha hi as corpus, resort may unquestionably
be h. 1 to tlie common law , but the power to
award the wilt by any of the courts ofthe Uni
t : States, must he given by written latv.
I his opinion is not to he considered as a
liii.lgmg the power of courts over their own
oihems, or to protect themselves and their
limbers, from being disturbed m the cxer
iim ol their Inn. lions. It extends only to the
p nveroi taking cognizance of any question lie
tween nidi. iouals, or between the government
mKi individuals.
i o enable the court to decide on such a
question, the power to determine it must be
given by written law.
I lie enquiry therefore, on this motion, will
1).■, v hcllier by any statute, compatible with
the e.Oiislitntiun oi the United Mates, the povv
< r to ..ward a writ ol habeas corpus , in such a
*.. >c as that of llrick llollnian and Samuel
tjwariwout, has been given to this court.
The 1 and ill section of the judicial act,* lias
been considered c.s containing a substantive
grant of thi., power.
It it in these words—“ That all the before
mentioned courts of the United States shall
1...ve power to issue w lits of mire Judas, habeas
t orpus, and all ether writs, not spo lally provi
ticil for by statute, which may he necessary for
the exercise of their respective jurisdictions,
and agreeable to the principles and usages of
law. And hat cither oi the justices of the
supreme court, as well as judges of the dis
tii 1 courts, shall have power to grant writs of
habeas cor/iu.,, lor the purpose ol an enquiry
into the cause of a commitment. Frovidcd ,
tli.il wiits ol /tuuius’ cor/ms shall in no case ex
tend to prisoners in gaol, unless where they
are in custody under or hy colour ol the autho
rity ol the United Mutes, or are committed lor
tiiai he lore some court of the same, or are lic
it ,-s..i v to he brought into court to testilv.”
1 he only doubt of which this section can be
tiusccpiiblc is, whether the restrictive words of
the first sentence limit the power to the award
o! such wins ol hub, os corf.ns as are necessary
to enable the courts of the United Slates to ox
en we their respective jurisdictions, in some
cause which they are capable ol finally dccid
>K*
It has'icon urged, that in strict grammatical
construction, this, words refer to tin last ante
cedent, which is, ** ail other writs not specially
piovidcd for by statute.”
This criticism may he correct, and is not en
tirely without its influence ; but the sound
construction, which the court thinks it safer to
adopt, is, that the trno sense of the words is to
be determined by the nature of the provision
and by the context.
li may lie worthy of remark, that this art
was pm.acd by the first Congress of the Uni
ted Stales, sitting under a constitution which
li id declared “that the privilege of the writ of
1. ..mu corpus should not be suspended, unless
” hen in cases ol rebellion or invasion, the pub
lic security might require it.”
Ac'ing under the imnicdi.ttc influence of
this injunction, they must have 101 l with pecu
liar lone, the obligation of providing eflicient
means hy which this great constitutional pri
vilege should receive life and activity; for if
the means be not in existence, the privilege
itself would be lost, although no law for its sus
pension should be enacted. Under tlie im-
V ( ion of this obligation they give, to all the
courts, the power of awarding writs of habeas
corpus.
It has been truly raid that this is a generic
term, end includes every species of that writ.
To this it m iv be added, that when used sing
ly, when w e s..y the writ of habeas curfius, with
liiit addition, we most generally mean that
great writ which is now applied for ; and in
that sense it i> used in the constitution.
The section proceeds to say, that “either of
the iiisiices of the supreme court, as well as
judges of the district courts, shall have power
to grant writs of habeas corf)us for the purpoM
of an enquiry into the cause of commitment.”
It has been urged that Congress could nev
er intend to give a |h>v\ cr of this kind to one of
the judges oft his court, which is refused to all
f them when assembled.
There is certainly much force in this argu
ment, and it receives additional strength from
the consideration, that if the power be denied
to this court, it is denied to every other court
■* i.eirc I'rjtcJ States, voL 1./i. 58.
in the United States. The right to grant this
itnport-.i t v.ril is given,in this sentence, to eve
ry judge of the circuit or district court, but can
neither lie exercised by the circuit nor district
com t. It would be strange if the judge, sitting
on the bench, should be unable to hear a mo
tion for this writ, where it might he openly
made, ai. openly discussed, and might yet re
tire to his chamber and in private receive and
decide upon the motion. This is r.otconsis
| tent with the genius of our legislation, nor with
: the course of our judicial proceedings. It
would lie much more consonant with both, that
1 the power of the judge at his chambers should
be suspended during his term, than that it
should he exercised only in see not.
Whatever motives might induce the legis
lature to withhold from the supreme court, the
power to award the great writ of habeas corpus,
there could lie none whirl: would induce them
to withhold it from every court in the United
!it;.U s ; and as it is granted to all in the same
sentence, and the same words, the sound con
stnic tion would seem to be, that the first sen
tence vests this power in all the courts of the
United States ; but as those courts arc not al
ways in session, the second sentence vests it
in every justice or judge of lie* United States.
The-doubt which lias been raised on this sub
ject may he. further explained by examining
tlie < haractcr of the various writs ol habeas-cor
fius, and selecting those to which this general
grant of power must Ire restricted, if taken
in the limited sense of being merely used
to enable tlie court to exercise its jurisdic
tion in causes which it is enabled to decide
finally.
The various writs of habeas corfrns, as stated
and accurately defined by judge Bfackstone, (3
111. Com. 129) arc, Ist. The writ oi habeas corfius
ad respondendum, “when a man hath a cause of
action against one who is confined by the pro
cess of sonic inferior court; in order to remove
the prisoner and charge him with this new ac
tion in the court above.”
This case may occur when a party having a
right to sue in this court (as, a state at the time
of the passage of this act, ora foreign minister)
wishes to institute a suit against a person who
is already confined by the process of an inferi
or court. This confinement may be either by
the process of a court of the United States, or
of a state court. Ifit be in a court of the U
niled States, this writ would be inapplicable,
because perfectly useless, and consequently
could not be contemplated by the legislature.
It would not be required, in such case, to
bring the body of the defendant actually into
court, and lie would already be in the charge
of the person who, under an original writ from
this court, would be directed to take him into
custody, and would already lie confined in the
same gaol in which be would be confined under
the process of this court, if he should be unable
to give bail.
It the party should be confined by process
from a state court, there arc many additional
reasons against the use of this writ in such a
case.
The state courts are not, in any sense of the
word, inferior conns, except iti the particular
cases in which an appeal lies from their judg
ment to this court; and in these cases the
mode of proceeding is particularly prescribed,
and is not by habeas corpus. They are not infe
rior courts, because they emanate from a differ
ent authority, and are the creatures ofa distinct
government.
2d. The writ of hubeas corpus ad satisfaci
endum, “ when a prisoner hath had judgment
against him in an action, and the plaintiff is
desirous to bring hint up to some superior
court to charge him with process of execu
tion.”
This case can never occur in the courts of the
U.S. One court never awards execution on the
judgment of another. Our whole junuicul
system forbids it.
3d. Ad prosequendum, testifeandum deliber
andum, kc. “ which issue when it is necessary
to remove a prisoner, in order to prosecute,
or bear testimony, in any court, or to be tried
in the proper jurisdiction wherein the tact was
committed.”
This writ might unquestionably be employ
ed to bring up a prisoner to bear testimony
in a court, consistently with the most limited
construction ot the words in the act of congress ;
but the power to bring a person up that lie
may be tried in the proper jurisdiction, is un
derstood to be the very question now before
the court.
4th and last. The common writ ad fucten-
(turn et recipicnduin. ‘■ which issues out of any
of the courts of Wcstniinster-hall, w hen a per
son is sued in some inferior jurisdiction, and i$
desirous to remove the action into the superior
court, commanding the inferior judges to
produce the body of the defendant, together
with the day anu cause of his caption and de
tainer (when the writ is frequently denominat
ed an habeas corpus cum cau ,) to do and receive
whatever the king’s court shall consider in that
behalf. 1 liis writ is grant able ot common
right, without any motion in court, and it
instantly supercedes all proceedings in the
court below.
Can a solemn grant of power to a court to
award a writ be considered as appplicablc to a
case in which that writ, if issuable at all, issues
by law w ithout the leave of the court ?
It would not be difficult to demonstrate that
the writ ot habeas corpus cum causa cannot be
the particular writ contemplated by the legis
lature in the section under consideration; but
it will be sufficient to observe generally, that
the same act prescribes a different movie for
bringing into the courts'of the U. States, suits
brought in a state court against a person hav
ing a right to claim the jurisdiction of the courts
of the U. S. lie may. on his lirst appearance,
file his petition and authenticate the fact, upon
which the cause is ipso Judo icmoved into the
courts of the U. States.
The only power then, which, on this limited
construction, would be granted by the section
under consideration, would be that of issuing
writs of habeas corpus ad testificandum. The
section itself proves thuttliis was not the inten
tion of the legislature. It concludes with the
following proviso , “ that the writs of habeas
corpus , shall in no case extend to prisoners in
gaol, unless where they are in custody under or
by colour of the authority of the United States,
or are committed for trial before some court of
the same, or are necessary to be brought into
court to testify.”
This proviso extends to the whole section.
It limits the powers previously granted to
the courts, because it specifies a case it is
particularly applicable to—the use of the pow
er by courts, where the person is necessary I
to lie brought into court to testify. That con
struction cannot be a fair oik* which would i
make the legislature except from tlie opera
tion of a proviso, limiting the express grant
ofa power, the whole power intended to be
granted.
From tlie review of the extent of the power
of awarding writs of habeas corpus, if the section
be construed in its restricted sense; from a
comparison of the nature of the writ which the •
courts of the United States would on that view •
of the subject be enabled to issue ; from a com- ’
parison ol tlie power, so granted, with the
other parts of the section, it is apparent that this ‘
limited sense ol the terra cannot be that which
was contemplated by the legislature.
But the twenty third section throws much
light upon this question. It contains those
words—“and upon all arrests in criminal cases
bail shall lie admitted, except where the punish
ment may be death ; in which case it shall not
be admitted but by the supreme court, or a
circuit court, or by a justice of the supreme
court, or by a judge of a district court, who
shall exercise.{heir discretion therein, regard
ing the nature and circumstances of the offence
and of the evidence, and of the usages of law.”
The appropriate process of bringing up a
prisoner, not committed by he court itself, to
be bailed, is by the writ now applied for. Os
consequence, a court, possessing the power to
bail prisoners not committed by itself may a
vvarda writ ol habeas corpus for the exercise of
that power. The clause under consideration
obviously proceeds on the supposition that this
power was previously given, and is explanatory
of the 14th section. * t
If by the sound construction of the act of \
congress, the power to award writs of habeas j
corpus, in order to examine into the cause of )
commitment, is given to this court, it remains to i
enquire, whether this be a case in which the |
writ ought to be granted. jj
The only objection is, that the commitment
has been made by a court having power to ,
commit, and to bail.
Against this objection the argument from
the bar has been so conclusive that nothing can •
be added to it.
It then this were res intejrc, the court would
decide in favor of the motion. But the questi
on is considered as long since decided. The
case of Hamilton is expressly in point in all its
parts, and although the question of jurisdiction
was not made at tlie bar, the case was several
days under advisement, and this question could
not hav e escaped the attention of the court
From that decision the court would not lightly 1
depart. —( United States v. Hamilton, 5 Dallas, l
1 7j
It the act of congress gives this court the
power to award a writ of habeas corpus in the
present case, it remains to enquire whether
that act be compatible with the constitution. ■
In the mandamus case, t it was decided, that ’
this court would not exercise original jurisdic
tion, except as far as that jurisdiction was given j
by the constitution But so far as that case has I
distinguished between original and appellate j
jurisdiction, that which the court is now asked ;
to exercise is clearly appellate. It is the revisi
on of a decision of an inferior court by which a
citizen lias been committed to gaol.
It has been demonstrated at the bar, that the
question brought forward on a habeas corpus ,
is always distinct front that which is involved
in the cause itself. The question whether the
individual shall be imprisoned, is always distinct
from the question whether lie shall be convict
ed or acquitted of the charge on which he is
to be tried, and therefore these questions are
separated, and may be decided in different
courts.
, The decision that the individual shall be im- j
prisoned, must always precede the application j
for a writ of habeas corpus, and this writ must 5
always be for the purpose of revising that de- ;
cision, and therefore appellate in its nature. j
But this point also is decided in Hamilton’s ;
case and in Burford’s case. { j
If at any time the public safety should rc- .
quire the suspension of the powers vested by .
this act in the courts of the United States, it is
for the legislature to say so.
That question depends on political considc- ;
rations, on which the legislature is to decide,— j
Until the legislative will be expressed, this <
court can only see its duty, and must obey the ■
laws.
The motion, therefore, must be granted.
t 1. Cranch's reports, Marburu vs. Madison.
j .it Feb. term, 1806, in this court.
To Let, i
A SMALL lIOLUE in Warren Ward, near the
market, with a vacant hi adjoining Enquire of ;
William Parker. j
, January rj;. 5
SLAVF.-MI.L.
Frcn*. a Ei’,tin.ore Paper, of March I.
It appears that unusual warmth was exhibit
ed by the southern members in the house of
representatives, on 1 riduy last, in a long and
violent debate on the slave bill. This bill, in
the preamble, disclaims all constitutional au
thority in congress over the right to slaves, and
enacts, that nothing contained in the eighth
section of the aforesaid law shall .-.fleet the light
of persons to transport or sell slaves not im
ported contrary to law. An interesting debate
also took place on the resolution repealing the
duty on salt, and continuing the Mediterranean
fund, when, at seven o’clock p. m. die first
section was agreed to—ayes 60, nocs 43 —and
the section continuing die Mediterranean fund
agreed to—ayes 46, noes-13.
sketch of Friday's procesdixgs.
Mr. Randolph observed, that a bill had
passed the house yesterday, which, whatever
might be the opinion of some gentlemen upon
it, went to strike at the root of all prepe: ty in
the southern states. By that law, two* men
may go from different parts of Accomac coun
ty, (Virginia) to Norfolk, with their slaves, and
one of them lose his right to such slaves on ar
, riving at that place. He contended, diat by dc
- pricing a man of the right to sell his property,
it ceased to be property. This power, he said,
had been assumed upon a principle extreiJely
alarming to the people of the southern stater—.
upon that sweeping, lie had like to have s„id
detestable, clause in the constitution, that it was
necessary to carry the other powers into effect.
He would ask gentlemen from the southern
states, whether they would like to rest the
security of their property upon the two houses
of congress, after what they had seen of their
disposition ? He would not be surprised, if, at
the next session, this entering wedge should
be driven further and further, until congress
should entirely emancipate slaves. He did not
deny the right of congress to prevent the im
portation of slaves; but he denied that they
had any right to deprive an owner of his pre
sent right to an existing slave. If this law
went into operation, unless the owners of slaves
were asleep, protests would be sent against it
from every state south of the Potomac he
hoped 100 from Maryland. Sir, (condoned
Mr. Randolph) wc may say what we please
about alien laws and sediticn laws ; but this kvv
is, in my opinion, the most frightful, the most
abominable, that was ever passed. lie then
moved, that leave be given to bring in a biii to
amend and explain the law passed yesterday,
prohibiting the importarion of slaves.
Mr. Goldsboiiougk said, that he had no
objection to the motion. He had not been en
tirely in favor of the principle alluded to in die
committee ot conference; but he thought it
far better that such a provision should be in
serted in the bill than that the whole bill sheuid
lie lost. The evil complained of, which only
prevents a man from carrying his slaves m
vessels under forty tons, was trivial, when put
in competition with the great object of prevent
ing the smuggling of slaves in small vessels.
Mr. Quixcey enquired whether the pro
posed measure would be in order. He thou; ht
it would be most proper to wait until the bill
had received the sanction of the third branch
of the government.
Mr. Randolph again insisted, that congress
had no more right to pass such a law, than they
had to prevent slaves being sent in a waggon.
It it passed, he said he doubted whether ve
should ever see another southern delegate on
; that floor. lie, for one, would have no hesita
| tion in saying, if the constitution is to be v ic—
. latcd, if the entering wedge is to be driven*
| let us recede, let us go home.
| Mr. Smylif.. The gentleman from Vir i
\ nia says he will not trust congress, and talks.
I of the southern states receding from the union,
ji If they do not like the union, let them say so.
i In the name of God, let them go home—wo
I can do without them. The subject of disunion
J has been so much spoken of lately, that I am
5 afraid it may take place. He was proceeding,
1 when
Mr. R.vnfolph begged leave to explain,
j He said he observed two stenographers on the
floor ; but he could not say that he put muck
dependence in either of them. The gentle
man from Pennsylvania had grossly misrepre
sented him. That gentleman had only slated
a part of what he had said ; and, by the rules of
■ evidence, a man was required to give the whole
’ truth—apart of it only, teas considered as equi
| valent to a falsehood. What he had said was,
I that he would not trust congress with the nta
! mtmission of slaves. The gentleman, he said,
i had endeavored to make an ungenerous use of
! What he had said about union and disunion.
’ For his own part, he looked upon union as the
’ means of our liberty, happiness and safety—as
; the means and not the end —but if union and the
; manumission of slaves are to be put into the
i scale, let union kick the beam ! —Jf this motion
| should fail, he observed, as a last resort, ha
should conceive it his duty,, though he did not
know whether the other southern members
would be of his opinion, to go to the President
of the United States and enter his protest
against the bill. He concluded by observing,
that there appeared to he a portion cf th. t
house, small hi pomt of abilines, who were op
, posed to the. present state of things in the
I” southern states.
Tire question was then taken on Mr. Ran
s dolph’s motion, and it was carried.
■ A committee of three members was appoint
i cd to bring in a bill.