....snip......
Based on Margaret Mitchell's hugely popular novel, producer David O. Selznick's four-hour epic tale of the American South during slavery, the Civil War and Reconstruction is the all-time box-office champion.
.......snip........
Considering its financial success and critical acclaim, "Gone With the Wind" may be the most famous movie ever made.
It's also a lie.
......snip.........
Along with D.W. Griffith's technically innovative but ethically reprehensible "The Birth of a Nation" (from 1915), which portrayed the Ku Klux Klan as heroic, "GWTW" presents a picture of the pre-Civil War South in which slavery is a noble institution and slaves are content with their status.
Furthermore, it puts forth an image of Reconstruction as one in which freed blacks, the occupying Union army, Southern "scalawags" and Northern "carpetbaggers" inflict great harm on the defeated South, which is saved - along with the honor of Southern womanhood - by the bravery of KKK-like vigilantes.
To his credit, Selznick did eliminate some of the most egregious racism in Mitchell's novel, including the frequent use of the N-word, and downplayed the role of the KKK, compared with "Birth of a Nation," by showing no hooded vigilantes.
......snip.........
One can say that "GWTW" was a product of its times, when racial segregation was still the law of the South and a common practice in the North, and shouldn't be judged by today's political and moral standards. And it's true that most historical scholarship prior to the 1950s, like the movie, also portrayed slavery as a relatively benign institution and Reconstruction as unequivocally evil.
.....snip.........
Or as William L. Patterson of the Chicago Defender succinctly wrote: "('Gone With the Wind' is a) weapon of terror against black America."
capitan_refugio #237 8/29/2004 to GOPcap argued that
"Bollman was not about habeas corpus...."capitan refugio #1808 11/30/2004 The placement of the Clause is less important than the reason it is there in the first place. (See Jaffa, pg 364)
One must note that capitan_refugio relies upon a philospher, Harry V. Jaffa, with no law degree, to overrule the United States Supreme Court.
Habeas Corpus, by Eric M. Freedman, NYU Press, 2001, devotes three entire chapters to Bollman.
In considering the legal expertise and honesty of capitan_refugio, one must consider his position, never relinquished, that "Bollman was not about habeas corpus."
And consider that in Bollman, Chief Justice John Marshall wrote:
If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.
The gentle reader may read the Opinion of the U.S. Supreme Court in Bollman and decide for him- or herself whether Bollman was, or was not, about habeas corpus.
LINK
U.S. Supreme Court
EX PARTE BOLLMAN, 8 U.S. 75 (1807)
8 U.S. 75 (Cranch)
EX PARTE BOLLMAN AND EX PARTE SWARTHOUT
February Term, 1807
C. LEE moved for a habeas corpus to the marshal of the district of Columbia, to bring up the body of Samuel Swartwout, who had been committed by the circuit court of that district, on the charge of treason against the United States; and for a certiorari to bring up the record of the commitment, &c.
And on a subsequent day Harper made a similar motion in behalf of Erick Bollman, who had also been committed by the same court on a like charge. 1
The order of the court below, for their commitment, was in these words:
'The prisoners, Erick Bollman and Samuel Swartwout, were brought up to court in custody of the marshal, arrested on a charge of treason against the United States, on the oaths of General James Wilkinson, General William Eaton, James L. Donaldson, Lieutenant William Wilson, and Ensign W. C. Mead, and the court went into further examination of the charge: Whereupon it is ordered, that the said Erick Bollman and Samuel Swartwout be committed to the prison of this court, to take their trial for treason against the United States, by levying war against them, to be there kept in safe custody until they shall be discharged in due course of law.'2
The oaths referred to in the order for commitment, were affidavits in writing, and were filed in the court below. C. Lee, for Swartwout.
Notwithstanding the decisions of this court in Hamilton's case, 3 Dall. 17. and in Burford's case, ante, vol. 3. p. 448. we are now called upon to show that this court has power to issue a writ of habeas corpus.
By the constitution of the United States, art. 3. s. 2. the grant of jurisdiction to the courts of the United States is general, and extends to all cases arising under the laws of the United States. This court has either original or appellate jurisdiction of every case, with such exceptions and under such regulations as congress has made or shall make. If congress has not excepted any case, then it has cognizance of the whole.
The appellate jurisdiction given by the constitution to this court includes criminal as well as civil cases, and no act of congress has taken it away. This court derives its power and its jurisdiction not from a statute, but from the constitution itself. No legislative act is necessary to give powers to this court. It is independent of the legislature; and in all the late discussions upon the question of putting down courts, it was admitted on all hands that the legislature could not destroy the supreme court. But if this court has no criminal jurisdiction to hear and determine, yet they may have a criminal jurisdiction to a certain extent, viz. to inquire into the cause of commitment, and admit to bail. This court has no original jurisdiction, except in certain cases; yet it has power to issue a mandamus in cases in which it has no appellate jurisdiction by writ of error or appeal, and will issue a prohibition even in a criminal case, if a circuit court should undertake to try it in a state in which the crime was not committed. So also if a district court should be proceeding upon a matter out of its jurisdiction, this court would grant a prohibition. By the judiciary act, s. 14. vol. 1. p. 58. 'All the beforementioned courts' (and the supreme court was the court last mentioned in the preceding section) '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.' 'And either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment: Provided, that 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.'
It has been suggested that the words 'and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions,' forbid the issuing of a habeas corpus, but in a case where it is necessary for the exercise of the court's jurisdiction. But the words 'necessary,' &c. apply only to the 'other writs not specially provided for.'
In order to restrict in some degree the general expression 'all other writs,' the subsequent words are used. The writ of habeas corpus was particularly named, because it would not (in all cases where it ought to be granted) come under the general denomination of writs necessary for the exercise of the jurisdiction of the court issuing it.
But admitting, for argument, that a writ of habeas corpus cannot issue but where it is necessary for the exercise of the jurisdiction of the court issuing it, yet the term 'jurisdiction' means the whole jurisdiction given to the court; and as this court has, by the constitution, jurisdiction in criminal cases, which jurisdiction is not taken away by any statute, it is a writ necessary for the exercise of its jurisdiction. Again, by the 33d section of the same, act, 'upon arrests in criminal cases, where the punishment may be death, bail shall not be admitted but by the SUPREME or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law.' By this section the supreme court has jurisdiction to admit a prisoner to bail in criminal cases punishable with death, and for that purpose to examine into the nature and circumstances of the offence, and of the evidence. For the exercise of this jurisdiction the writ of habeas corpus is necessary. There is no other writ, 'agreeable to the usages of law,' which will answer the purpose.
It is doubtful whether a judge of this court can issue the writ while the court is sitting, and in a district in which he has no authority to act as a circuit judge.
If it be said that the writ can only issue where it is in exercise of appellate jurisdiction, we say it is appellate jurisdiction which we call upon this court to exercise. The court below has made an illegal and erroneous order, and we appeal in this way, and pray this court to correct the error.
Rodney, Attorney General, declined arguing the point on behalf of the United States.
Harper, for Bollman.
There are two general considerations:
1. Whether this court has the power generally of issuing the writ of habeas corpus ad subjiciendum?
2. If it has the power generally, whether it extends to commitments by the circuit court?
1. The general power of issuing this great remedial writ, is incident to this court as a supreme court of record. It is a power given to such a court by the common law. Every court possesses necessarily certain incidental powers as a court. This is proved by every day's practice. If this court possessed no powers but those given by statute, it could not protect itself from insult and outrage. It could not enforce obedience to its immediate orders. It could not imprison for contempts in its presence. It could not compel the attendance of a witness, nor oblige him to testify. It could not compel the attendance of jurors, in cases where it has original cognizance, nor punish them for improper conduct. These powers are not given by the constitution, nor by statute, but flow from the common law. This question is not connected with another, much agitated in this country, but little understood, viz. whether the courts of the United States have a common law jurisdiction to punish common law offences against the government of the United States. The power to punish offences against the government is not necessarily incident to a court. But the power of issuing writs of habeas corpus, for the purpose of relieving from illegal imprisonment, is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of the citizen. It being clear then that incidental powers belong to this in common with every other court, where can we look for the definition, enumeration and extent of those powers, but to the common law; to that code from whence we derive all our legal definitions, terms and ideas, and which forms the substratum of all our juridical systems, of all our legislative and constitutional provisions. It is not possible to move a single step in any judicial or legislative proceeding, or to execute any part of our statutes, or of our constitution, without having recourse to the common law. The constitution uses, for instance, the terms 'trial by jury' and ' habeas corpus.' How do we ascertain what is meant by these terms? By a reference to the common law. This court has power, in some cases, to summon jurors, and examine witnesses. If an objection be made to the competence of a witness, or a juror be challenged, how do you proceed to ascertain the competence of the witness or the juror? You look into the common law. The common law, in short, forms an essential part of all our ideas. It informs us, that the power of issuing the writ of habeas corpus belongs incidentally to every superior court of record; that it is part of their inherent rights and duties thus to watch over and protect the liberty of the individual.
Accordingly we find that the court of common pleas in England, though possessing no criminal jurisdiction of any kind, original or appellate, has power to issue this writ of habeas corpus. This power it possessed by the common law, as an incident to its existence, before it was expressly given by the habeas corpus act. This appears from Bushell's case, reported in Sir Thomas Jones, 18. and stated, in Wood's case, 3 Wilson, 175. by the chief justice, in delivering the opinion of the court. Bushell's case was shortly this: A person was indicted at the Old Bailey, in London, for holding an unlawful conventicle. The jury acquitted him, contrary to the direction of the court on the law. For this some of the jurors, and Bushell among the rest, were fined and imprisoned by the court at the Old Bailey. Bushell then moved the court of common pleas for a writ of habeas corpus, which, after solemn argument and consideration, was granted by three judges against one. Bushell was brought up, and the cause of his commitment appearing insufficient, he was discharged. This took place before the habeas corpus act was passed, and is a conclusive authority in favour of the doctrine for which we contend. Wood's case, 3 Wilson, 175. and 3 Bac. Ab. 3. are clear to the same point.
Whence does the court of common pleas derive this power? Not from its criminal jurisdiction; for it has none. Not from any statute; for when Bushell's case was decided there was no statute on the subject. Not from any idea that such a power is necessary for the exercise of its ordinary functions; for no such necessity exists, or has ever been supposed to exist. But from the great protective principle of the common law, which in favour of liberty gives this power to every superior court of record, as incidental to its existence.
The court of chancery in England possesses the same power by the common law, as appears from 3 Bac. Ab. 3. This is a still stronger illustration of the principle, for the court of chancery is still further removed, if possible, than the court of common pleas, from all criminal jurisdiction, still more exempt from the necessity of such a power for the exercise of its peculiar functions.
The court of exchequer also, as appears from the same authorities, though wholly destitute of criminal jurisdiction, possesses the power of relieving, by habeas corpus, from illegal restraint.
Hence it appears that all the superior courts of record in England are invested by the common law with this beneficial power, as incident to their existence. The reason assigned for it in the English law books is, that the king has always a right to know, and by means of these courts to inquire, what has become of his subjects. That is, that he is bound to protect the personal liberty of his people, and that these courts are the instruments which the law has furnished him for discharging his high duty with effect. It may then be asked, whether the same reasons do not apply to our situation, and to this court. Have the United States, in their collective capacity, as sovereign, less right to know what has become of their citizens, than the king or government of England to inquire into the situation of his subjects? Are they under an obligation, less strong, to protect individual liberty? Have not the people as good a right as those of England to the aid of a high and responsible court for the protection of their persons? Is our situation less advantageous in this respect than that of the English people? Or have we no need of a tribunal, for such purposes, raised by its rank in the government, by its independence, by the character of those who compose it, above the dread of power, above the seductions of hope and the influence of fear, above the sphere of party passions, factious views, and popular delusion? Of a tribunal whose members, having attained almost all that the constitution of their country permits them to aspire to, are exempted, as far as the imperfection of our nature allows us to be exempted, from all those sinister influences that blind and swerve the judgments of men-have nothing to hope, and nothing to fear, except from their own consciences, the opinion of the public, and the awful judgment of posterity? It is in the hands of such a tribunal alone, that in times of faction or oppression, the liberty of the citizen can be safe. Such a tribunal has the constitution created in this court, and can it be imagined that this wise and beneficient constitution intended to deny to the citizens the valuable privilege of resorting to this court for the protection of their dearest rights?
On this ground alone the question might be safely rested; but there is another, not stronger indeed, but perhaps less liable to question.
Congress has expressly given this power to this court, by the 14th section of the act of 24th September, 1789, commonly called the judiciary act. This section, according to its true grammatical construction, and its apparent intent, contains two distinct provisions. The first relates to writs of scire facias and habeas corpus; the second to such other writs as the court might find necessary for the exercise of their jurisdiction. As to writs of scire facias and habeas corpus, which are of the most frequent and the most beneficial use, congress seems to have thought proper to make a specific and positive provision. It was clearly and obviously necessary that such writs should be issued, not merely to aid the court in the exercise of its ordinary jurisdiction, but for the general purposes of justice and protection. The authority, therefore, to issue these writs, is positive and absolute; and not dependent on the consideration whether they might be necessary for the ordinary jurisdiction of the courts. To render them dependent on that consideration, would have been to deprive the courts of many of the most beneficial and important powers which such courts usually possess.
But the legislature foresaw that many other writs might, in the course of proceedings, be found necessary for enabling the courts to exercise their ordinary jurisdiction, such as subpoenas, writs of venire facias, certiorari, fieri facias, and many others known to our law. To attempt a specific enumeration of these writs might have been productive of inconvenience: for if any had been omitted, there would have been doubts of the power to issue them. Congress, therefore, instead of a specific enumeration of them, wisely chose to employ a general description. This description is contained in the words, 'all other writs-which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'- The true grammatical construction of the sentence accords with this construction. The words of restriction or description ('which may be necessary for the exercise of their respective jurisdictions,' &c.) stand here as a relative, and must refer to the next antecedent. There are two antecedents; 1st. 'Writs of scire facias and habeas corpus;' and 2d. 'All other writs.' The second is the next antecedent to which, of course, the relative terms 'which may be necessary,' &c. must relate and be confined. Those words therefore cannot, either in grammatical construction, or according to the plain object of the legislature, be considered as restricting the grant of power in the first part of the sentence; but, merely as explaining the extent of the power given in the second part.
It is clear then that this section bestows on this court the power to grant writs of habeas corpus without restriction. Does this power extend to the application now before the court?
The term habeas corpus is a generic term, and includes all kinds of writs of habeas corpus; as well the writ ad subjiciendum, as ad testificandum, or cum causa, &c.
But the 33d section of the same act must remove all doubt upon that point; for when it gives this court power to admit to bail in cases punishable with death, and commands this court to use their 'discretion therein, regarding the nature and circumstances of the offence and of the evidence;' it takes it for granted that the prisoner is to be brought before the court for the purpose of inquiring into those circumstances. If this section does not give the power, it shows at least that the legislature considered it as given before by the 14th section. Again, the latter part of the 14th section gives to each of the justices of this court, and of the district courts, the power for which we contend. It cannot be presumed that congress meant to give each judge singly a power which it denied to the whole court. That it confided more in the individual members of the court, than in the court itself. That it considered the weight, dignity, character, and independence of each individual member, as a more firm barrier against oppression than those of the tribunal itself, sitting for the exercise of the highest judicial functions known to our law.
This part of the statute is remedial and beneficial to the subject, and it is a sound maxim of law, that such statutes are to be construed liberally in favour of liberty.
Considering it as settled that congress intended to give this court the power to issue writs of habeas corpus ad subjiciendum, the next question is, whether congress had authority, by the constitution, to confer that power?
The authority of congress must be tested by the constitution, and if they should appear to this court to have exceeded the limits there prescribed, this court must consider their act void. The power of the judiciary to collate an act of congress with the constitution, when it comes judicially before them, and of declaring it void if against the constitution, is one of the best barriers against oppression, in the fluctuations of faction, and in those times of party violence which necessarily result from the operation of the human passions in a popular government. In the violence of those political storms which the history of the human race warns us to expect, this shelter may indeed be found insufficient; but weak as it may be, it is our best hope, and it is the part of patriotism to uphold and strengthen it to the utmost. But it is a power, of a delicacy inferior only to its importance; and ought to be exercised with the soundest discretion, and to be reserved for the clearest and the greatest occasions.
The question whether congress could confer upon this court the power of issuing the writ of habeas corpus ad subjiciendum, depends upon another question, viz. whether this power or jurisdiction be in its nature original or appellate. The original jurisdiction of this court being limited to certain specified cases, of which this is not one, it follows, that if the issuing such a writ of habeas corpus be an exercise of original jurisdiction, the power to issue it cannot be conferred on, or exercised by this court.
This principle was established by the case of Marbury v. Madison, ( ante, vol. 1. p. 175.) where the court said that 'to enable this court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms; and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true. Yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer, for the delivery of a paper, is in effect the same as to sustain an original action for that paper; and therefore seems not to belong to appellate, but to original jurisdiction.'
This passage needs no comment. The criterion which distinguishes appellate from original jurisdiction, is that it revises and corrects the decisions of another tribunal; and a mandamus may be used when it is for the accomplishment of such a purpose.
The object of the habeas corpus now applied for, is to revise and correct the proceedings of the Court below, (under whose orders the prisoners stand committed,) so far as respects the legality of such commitment. If that court had given judgment against the applicants in the sum of one hundred dollars, the power to revise that judgment would have been appellate, and might have been given by congress to this court. From a decision which might take a few dollars from their pockets they might be relieved. Shall the relief be rendered impossible because the decision deprives them of all that can distinguish a freeman from the most abject slave-of all that can render life desirable?
If the question, respecting the power of this court, under the constitution and the act of congress, if not under the common law, to issue the writ of habeas corpus ad subjiciendum, were still open, it ought, on these principles and authorities, to be decided in our favour. But it is not open. It has been twice solemnly adjudged in this court. First in the case of Hamilton, 3 Dallas, 17. not long after the court was organized; and very recently in the case of Burford. (Ante, vol. 3. p. 448.) We contend that the case is settled by these decisions, and that it is no longer a question whether this court has the power which it is now called upon to exercise.
The exercise of this power, the benefit of these decisions, the protection of the law thus established, we claim as a matter of right, which this honorable court cannot refuse.
Shall it be said that no part of our law is fixed and settled, except what is positively and expressly enacted by statute? On the contrary, is it not certain that by far the greatest portion of that law on which our property, our lives, and our reputations depend, rests solely on the decisions of courts? Shall it be said that all this important and extensive branch of the law is uncertain and fluctuating, dependent on the ever varying opinions and passions of men, and liable to change with every change of times and circumstances? Shall it be said that each individual judge may rightfully disregard the decisions of the court to which he belongs, and set up his own notions, his prejudices, or his caprice, in opposition to their solemn judgment? This is not the principle of our law; this is not the tenure by which we hold our rights and liberties. Stare decisis is one of its favourite and most fundamental maxims. It is behind this wise and salutary maxim that courts and judges love to take refuge, in times and circumstances that might induce them to doubt of themselves, to dread the secret operation of their own passions and prejudices, or those external influences, against which, in the imperfection of our nature, our minds can never be sufficiently guarded. In such times and circumstances, a judge will say to himself, 'I know not how far I might be able, in this case, to form an impartial opinion. I know not how far my judgment may be blinded or misled by my own feelings or the passions of others, by the circumstances of the moment, or the views and wishes of those with whom I am connected. But here is a precedent established under circumstances which exclude all possibility of improper bias. This precedent is therefore more to be relied on than my judgment; and to this I will adhere as the best and only means of protecting myself, my own reputation, and the safety of those who are to be affected by my decision, against the danger of those powerful, though imperceptible influences, from which the most upright and enlightened minds cannot be considered as wholly exempt.'
There have, indeed, been instances where precedents destructive to liberty, and shocking to reason and humanity, established in arbitrary and factious times, have been justly disregarded. But when in times of quiet, and in cases calculated to excite no improper feelings, precedents have been established in favour of liberty and humanity, they become the most sacred as well as the most valuable parts of the law, the firmest bulwark for the rights of the citizens, and the surest guardian for the consciences and the reputation of judges.
Such are the precedents on which we rely.
The case of Hamilton was decided soon after the establishment of the government, when little progress had been made in the growth of party passions and interests, and when whatever of political feeling can be supposed to have existed in the court, was against the prisoner. Yet this beneficial power was exerted for his relief. He was brought before this court by habeas corpus, and was discharged. The precedent thus established was, by this court, fifteen years afterwards, in the case of Burford, declared to be decisive.
The case of Burford was wholly unconnected with political considerations, or party feelings. The application was made on behalf of an obscure individual, strongly suspected, though he could not be legally convicted, of a most odious and atrocious crime. The abhorrence of his supposed offence, the strong circumstances which appeared against him, the course of his life, his general character, and the universal belief entertained of his guilt, all combined to excite against him every honest feeling of the human heart. Yet he had the benefit of one of those precedents which we now claim; and in his case the authority of another and a more solemn decision was added to the doctrine for which we contend.
Again let it be asked, is not the law to be considered as settled by these repeated decisions? Are we still, as to this most important point, afloat on the troubled ocean of opinion, of feeling, and of prejudice? If so, deplorable indeed is our condition.
Misera est servitus, ubi lex est vaga aut incerta.
This great principle, stare decisis, so fundamental in our law, and so congenial to liberty, is peculiarly important in popular governments, where the influence of the passions is strong, the struggles for power are violent, the fluctuations of party are frequent, and the desire of suppressing opposition, or of gratifying revenge under the forms of law, and by the agency of the courts, is constant and active.
2. The second head of inquiry is, whether the power to issue writs of habeas corpus be restricted by the circumstance of the commitment having been made by the circuit court of the district of Columbia.
Before such a principle is admitted, let us inquire into its possible and even probable effects on the liberties of the people. Is it not manifest that it would deprive the citizens of the guardianship of the most respectable and independent courts, and place their personal liberty at the mercy of inferior tribunals? Do we not know that congress may institute as many inferior tribunals, and may assign to the judges of these tribunals such salaries as they may think fit? Does it not hence result that a succession of courts may be instituted, to the lowest of which may be assigned salaries so contemptible, and duties so unimportant or so odious, as necessarily and certainly to exclude every man of character, talents and respectability of every party? Will not such courts, therefore, be necessary filled by the meanest retainers, the most obsequious flatterers, and the most servile tools of those in power for the moment? Can any thing like independence or integrity be expected from such judges? Will they not act continually under the influence, not merely of their own party passions and prejudices, but of hope and of fear, those great perverters of the human mind? The precedent is already set that they may be turned out of office by the abolition of their courts; and their hopes of promotion to a higher station, and a better salary will depend on their servility and blind obedience to those in power. Let it be once established by the authority of this court, that a commitment on record by such a tribunal, is to stop the course of the writ of habeas corpus, is to shut the mouth of the supreme court, and see how ready, how terrible, and how irresistible an engine of oppression is placed in the hands of a dominant party, flushed with victory, and irritated by a recent conflict; or struggling to keep down an opposing party which it hates and fears. Does the history of the human passions warrant the conclusion, or the expectation, that such an engine will not be used? We unfortunately know, from the experience of every age, that there are few excesses into which men may not be hurried by the lust of power or the thirst of vengeance. We too are men of like passions, and it behoves us, ere we have reached these fatal extremes, to provide, as far as the imperfection of human nature will permit, against the dangers which have assailed others, and which threaten us. The best mode of making this provision, is to establish salutary maxims in quiet times, and to adhere to them steadily. Let it be now declared that there resides in this high tribunal (as respectable as our constitution can make it, and as independent as the nature of our government permits) a power to protect the liberty of the citizen, by the writ of habeas corpus, against the enterprizes of inferior courts, which may be constituted for the purposes of oppression or revenge, and you place one barrier more round our safety. What stubborn maxim of law, what binding authority requires the admission of a principle so repugnant to all our feelings and to the spirit of the constitution? On what ground or reason of law can it be pretended that a commitment by the circuit court stops the course of the writ of habeas corpus?
Is it because the circuit court has competent jurisdiction to commit? This cannot be the reason, for every justice of the peace has competent jurisdiction to commit, and the reason, therefore, if it existed, would destroy the whole effect of the writ of habeas corpus.
Is it because the circuit court has competent jurisdiction to try the offence? This cannot be the reason, for in Bushell's case, formerly cited from 3 Wilson, 175. it appears that a commitment by the sessions at the Old Bailey, a criminal court of very high authority, and which had jurisdiction over the offence, did not prevent the court of common pleas from relieving by habeas corpus.
So also by the forest laws in England, in former times, the judge of the forest had jurisdiction for the punishment of offences within the forest; and yet it appears, from 2 Inst. 290. that a person committed by the judge of the forest for such an offence, might be relieved by habeas corpus from the superior courts.
It is well known, too, that, by the laws of England, the king has power to erect courts by special commission, with power to try and punish offences. From Wood's case, 3 Wilson, 173. it appears that a person committed by such commissioners, in a case which they had authority to try, may be relieved by habeas corpus. This, therefore, cannot be the reason.
Is it because the circuit court is a court of record? So is the court of Piepoudre. But can it be imagined that if that court were to commit a man in England, the power of relieving by habeas corpus from the superior courts would be thereby taken away? Congress may erect as many inferior courts of record as they please. Can it be imagined that by instituting such courts they can, in effect, suspend the writ of habeas corpus indefinitely, and in cases where the suspension is expressly forbidden by the constitution?
This power, moreover, has been shown to be appellate; and it is of the very essence of appellate power to review the decisions of inferior courts of record. Can it be imagined that such a decision may be reviewed where a small amount of property only is affected, and that there is no relief where it deprives a citizen of his liberty?
Between superior courts of record, of equal authority and co-ordinate rank, there may properly be a comity observed which would prevent them from attempting to interfere with the decisions of each other. Perhaps in England the court of common pleas would not attempt to release by habeas corpus, a person committed by the exchequer, or chancery, and vice versa. But this comity cannot exist between superior and inferior courts; and there is no doubt that the court of king's bench, which is a court superior to the common pleas and the exchequer, would grant a writ of habeas corpus, for any person imprisoned by either of those courts for a criminal matter.
But this point does not rest on general reasoning alone, however strong. It has been expressly adjudged by this court. The case of Burford, formerly cited, is a complete authority on this point, as well as on the former. Burford's case had been acted on judicially by the circuit court of this district. He stood committed under its decision. That court did not, indeed, commit him in the first instance, but he was brought before it on habeas corpus-the order of commitment made by the justices of the peace was altered and modified, and he was committed by a new order from the circuit court. This recommitment was as complete an adjudication upon the subject as the commitment in the present case. One was as much a determination on record by the circuit court as the other; and one can, no more than the other, preclude the exercise of this court's power to relieve by habeas corpus. Again, therefore, we claim the benefit of this decision. We again appeal to the great maxim stare decisis; we again deprecate the mischiefs that must ensue, if precedents in favour of liberty, made in times and under circumstances the most favourable to correct decision, should be disregarded in other times, and in situations where the existence of passion, prejudice and improper influence may be dreaded. We deprecate the dangers and mischiefs that must ensue, should the laws on which our dearest rights depend, be thus left to fluctuate on the ever varying tide of circumstances and events, and we trust that the protecting power of this high tribunal, will now fix this great land-mark of the constitution; and will place our liberties, as far as the imperfection of human things can permit, beyond the reach of opinion, of caprice, and of sinister views.
February 13.
MARSHALL, Ch. J. 4 delivered the opinion of the court, as follows:
As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.
Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.
This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.
To enable the court to decide on such question, the power to determine it must he given by written law.
The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.
The 14th section of the judicial act (Laws U. S. vol. 1. p. 58.) has been considered as containing a substantive grant of this power.
It is in these words: 'That all the before mentioned courts of the United States 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. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that 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.'- The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding. It has been urged, that in strict grammatical construction, these words refer to the last antecedent, which is, 'all other writs not specially provided for by statute.'
This criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context. It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'
Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.
It has been truly said, that this is a generic term, and includes every species of that writ. To this it may be added, that when used singly- when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution. The section proceeds to say, that 'either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.'
It has been argued that congress could never intend to give a power of this kind to one of the judges of this court, which is refused to all of them when assembled.
There is certainly much force in this argument, and it receives additional strength from the consideration, that if the power be denied to this court, it is denied to every other court of the United States; the right to grant this important writ is given, in this sentence, to every judge of the circuit, or district court, but can neither be exercised by the circuit nor district court. It would be strange if the judge, sitting on the bench, should be unable to hear a motion for this writ where it might be openly made, and openly discussed, and might yet retire to his chamber, and in private receive and decide upon the motion. This is not consistent with the genius of our legislation, nor with the course of our judicial proceedings. It would be much more consonant with both, that the power of the judge at his chambers should be suspended during his term, than that it should be exercised only in secret. Whatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.
The doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus, and selecting those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable the court to exercise its jurisdiction in causes which it is enabled to decide finally. The various writs of habeas corpus, as stated and accurately defined by judge Blackstone, (3 Bl. Com. 129.) are, 1st. The writ of habeas corpus ad respondendum, 'when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action 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, or a foreign minister,) wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court of the United States, or of a state court. If it be in a court of the United 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, as he 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 be confined in the same jail in which he would be confined under the process of this court, if he should be unable to give bail.
If the party should be confined by process from a state court, there are 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 courts, except in the particular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government.
2d. The writ of habeas corpus ad satisfaciendum, 'when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.'
This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it.
3d. Ad prosequendum, testificandum, deliberandum, &c. '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 fact was committed.' This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of congress; but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court.
4th, and last. The common writ ad faciendum et recipiendum, 'which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer , (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatever the king's court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supersedes all proceedings in the court below.'
Can a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court?
It would not be difficult to demonstrate that the writ of habeas corpus cum causa cannot be the particular writ contemplated by the legislature in the section under consideration; but it will be sufficient to observe generally that the same act prescribes a different mode for bringing into the courts of the United States suits brought in a state court against a person having a right to claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipso facto removed into the courts of the United 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 that this was not the intention of the legislature. It concludes with the following proviso, 'That writs of habeas corpus shall in no case extend to prisoners in jail, 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 in which it is particularly applicable to the use of the power by courts:-where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted.
From this 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 comparison of the power so granted with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature.
But the 33d section throws much light upon this question. It contains these words: 'And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death; in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding 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 the court itself, to be bailed, is by the writ now applied for. Of consequence, a court possessing the power to bail prisoners not committed by itself, may award a writ of 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.
If, by the sound construction of the act of congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this court, it remains to inquire whether this be a case in which the writ ought to be granted. 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.
If then this were res integra, the court would decide in favour of the motion. But the question 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 the bar, the case was several days under advisement, and this question could not have escaped the attention of the court. From that decision the court would not lightly depart. (United States v. Hamilton, 3 Dall. 17.)
If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution.
In the mandamus case, (ante, vol. 1. p. 175. Marbury v. Madison,) it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to jail.
It has been demonstrated at the bar, that the question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted 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 imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature.
But this point also is decided in Hamilton's case and in Burford's case. 5
If at any time the public safety should require 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 considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.
The motion, therefore, must be granted.
