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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.