constituted. And if, in defining their jurisdiction, it were thought proper to signalize two writs, out of the many known to the English law, as within the unqualified competency of the new tribunals, it would seem natural that those two should be selected, which boasted their origin from the charter of English liberties, and had been consecrated for ages in the affectionate memories of the people as their safeguard against oppression.

This consideration has interpreted for me the terms of the statute, which define my jurisdiction on this subject. Very soon after I had been advanced to the Bench, I was called upon to issue the writ of habeas corpus, at the instance of a negro, who had been arrested as

fugitive from labor. It was upon the force of the argument, to which I now advert, that I then awarded the process; and from that day to this, often as it has been invoked and awarded in similar cases that have been before me, my authority to award it has never been questioned.

The language of the act of Congress reflects the history of the constitutional provision. It enacts (First Congr., Sess. 1, ch. 20, sec. 14)" that all the before mentioned courts of the United States" (the Supreme, Circuit and District,) "shall have power to issue writs of scire facias habeas corpus and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law."

I am aware that it has sometimes been contended or assumed, without, as it seems to me, a just regard to the grammatical construction of these words, that the concluding limitation applies to all the process of the courts, the two writs specially named among the rest; and that the federal courts can only issue the writ of habeas corpus, when it has become necessary to the exercise of an otherwise delegated jurisdiction; in other words, that it is subsidiary to some original process or pending suit.

It is obvious, that if such had been the intention of the lawmakers, it was unnecessary to name the writ of habeas corpus at all; for the simpler phrase, "all writs necessary, &c." would in that case have covered their meaning. But there are objections to

this reading more important than any that found themselves on grammatical rules.

The words that immediately follow in the section, give the power of issuing the writ to every judge, for the purpose of inquiring into the causes of a commitment. Now, a commitment presupposes judicial action, and this action it is the object of the writ to review. Can it be, that a single judge, sitting as such, can re-examine the causes of a detainer, which has resulted from judicial action, and is therefore prima facie a lawful one; and yet that the court, of which he is a member, cannot inquire into the causes of a detainer, made without judicial sanction, and therefore prima facie unlawful?

Besides, if this were the meaning of the act, it might be difficult to find the cases to which it should apply. I speak of the writ of habeas corpus ad subjiciendum, the great writ of personal liberty, referred to in the constitution; not that modification of it which applies specially to the case of a commitment, nor the less important forms of habeas corpus, ad respondendum, ad faciendum, &c., which are foreign to the question. I do not remember to have met a case, either in practice or in the books, where the writ ad subjiciendum could have performed any pertinent office in a pending suit. There may be such, but they do not occur to me; and I incline very strongly to the opinion, that if the power to issue the writ of habeas corpus applies only to cases of statutory jurisdiction, outrages upon the rights of a citizen can never invoke its exercise by a federal court.

If such were indeed the law of the United States, I do not see how I could escape the conclusion, that the jealousy of local interests and prejudice, which led to the constitution of federal courts, regarded only disputes about property; and that the liberty of a citizen, when beyond the State of his domicil, was not deemed worthy of equal protection. From an absurdity so gross as this, I relieve myself by repeating the words of Chief Justice Marshall, in ex parte Watkins, 3 Pet. 201: "No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up on it."

Whether, then, I look to the constitution, and its history, or to the words or the policy of the act of Congress, I believe that it was

meant to require of the Courts of the United States, that they should dispense the privileges of the writ of habeas corpus to all parties lawfully asserting them, as other courts of similar functions and dignity had immemorially dispensed them at the common law. The Congress of 1789 made no definition of the writ, or of its conditions, or effects. They left it as the constitution left it, and as it required them to leave it, the birthright of every man within the borders of the States; like the right to air, and water, and motion, and thought, rights imprescriptible, and above all legislative discretion or caprice.

And so it ought to be. There is no writ so important for good, and so little liable to be abused. At the worst, in the hands of a corrupt or ignorant judge, it may release some one from restraint who should justly have remained bound. But it deprives no one of freedom, and devests no right. It could not give to Mr. Wheeler the possession of his slaves, but it might release them from the custody of a wrong-doer. Freemen or bondsmen, they had rights; and the foremost of these was the right to have their other rights adjudicated openly and by the tribunals of the land. And this right at least, Mr. Wheeler shared with them; he also could claim. a hearing.

Unless these views are incorrect throughout, the District Court had jurisdiction of the case, which came before it at the instance of Mr. Wheeler. He represented in substance, by his petition under oath, that three human beings had been forcibly taken possession of by Passmore Williamson, without authority of law, within the Eastern District of Pennsylvania; and he prayed, that by force of the writ of habeas corpus, Mr. Williamson might be required to produce their bodies before the court, and to declare what was the right or pretext of right, under which he claimed to detain them.

Whether Mr. Wheeler was in fact entitled to demand this writ, or whether upon a full discussion of the law the court might have felt justified in refusing it to him, is a question of little moment. Every day and in every court, writs issue at the instance of parties asserting a grievance, and very often when in truth no grievance

has been sustained. The party assailed comes before the court in obedience to its process. He perhaps questions the jurisdiction of the court. Perhaps he denies the fact charged. Perhaps he explains that the fact, as charged, was by reason of circumstances a lawful one. The judge is not presumed to know beforehand, all the merits of the thousand and one causes that come before him: he decides when he has heard. But the first duty of a defendant, in all cases, is obedience to the writ which calls him into court. Till he has rendered this, the judge cannot hear the cause, still less pass upon its merits.

Mr. Williamson came before the court; but he did not bring forth the bodies of his alleged prisoners, as the writ had commanded him. He did not question the jurisdiction of the court: he did not assert that the negroes were free, and that the writ had been applied for without their authority or consent: but he simply denied that they had ever been in his custody, power or possession, as Mr. Wheeler asserted.

Witnesses were heard, and, with one consent, they supported the allegations of Mr. Wheeler, and contradicted the denial of Mr. Williamson.

Mr. Williamson's counsel then asked time to enable them to produce witnesses who were material on his behalf; remarking that their client might desire to bring the negroes into court, to prove that they had not been abducted. The judge informed them, in reply, that upon Mr. Williamson making the customary affidavit that there were material witnesses whom he wished to adduce, the cause would be continued, as of course, till a future day. Mr. Williamson declined making the affidavit.

He however asked leave to declare for himself what he had done, and why. He was heard, and, speaking under solemn affirmation, he not only verified all the important facts that had been sworn to by Mr. Wheeler and the witnesses, but added that immediately before coming into court with his return, he had called upon a negro who had been his principal associate in the transaction, to ascertain whether the negroes were "safe," and had been informed by him that they were "all safe."

Two motions were then made by Mr. Wheeler's counsel; the first, that Mr. Williamson should be committed for a contempt of process, in that he had made a false return to the writ; the second, that he should be held to answer to a charge of perjury. He summed up the evidence, and referred to authorities in support of these motions. The counsel of Mr. Williamson then asked leave to consult together as to their appropriate course of action; and this being assented to by the Court, they retired with their client for the purpose, from the court room. Returning after some time, they informed the court that they declined making any argument upon the questions which were before it.

The case, which was in this manner thrown upon the court for its unaided adjudication, had assumed an aspect of grave responsibility on the part of Mr. Williamson. It was clearly in proof that the negroes had been removed by persons acting under his counsel, in his presence, and with his co-operation: his return to the writ denied that they had ever been within his possession, custody, or control. Under ordinary circumstances, this denial would have been conclusive; but being controverted by the facts in evidence, it lost that character. "The court," said Judge Story, in a case singularly analogous in its circumstances, (U. S. vs. Green, 3 Mas. 483,) "will not discharge the defendant, simply because he declares that the infant is not in his power, possession, control or custody, if the conscience of the court is not satisfied that all the material facts are fully disclosed. That would be to listen to mere forms, against the claims of substantial justice, and the rights of personal liberty in the citizen. In ordinary cases, indeed, such a declaration is satisfactory and ought to be decisive, because there is nothing before the court upon which it can ground a doubt of its entire verity, and that in a real and legal sense the import of the words "possession, power, or custody," is fully understood and met by the party. The cases of the King vs. Vinton, 5 T. R., 89, and of Stacey, 10 Johns. 328, show with what jealousy, courts regard returns of this nature. In these cases, there was enough on the face of the returns to excite suspicions that more was behind, and that