Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

PASSMORE WILLIAMSON.

Moyamensing Prison, August 9, 1855.

No. II

The Opinion and Decision of Judge Kane, referred to in the foregoing petition

The U. S. A. ex. rel. Wheeler agt. Passmore Williamson– Sur. Habeas Corpus, 27th July, 1855. – Colonel John H. Wheeler, of North Carolina, the United States Minister to Nicaragua, was on board a steamboat at one of the Delaware wharves, on his way from Washington to embark at New York for his post of duty. Three slaves belonging to him were sitting at his side on the upper deck.

Just as the last signal bell was ringing, Passmore Williamson came up to the party – declared to the slaves that they were free – and forcibly pressing Mr. Wheeler aside, urged them to go ashore. He was followed by some dozen or twenty negroes, who, by muscular strength, carried the slaves to the adjoining pier; two of the slaves at least, if not all three, struggling to release themselves, and protesting their wish to remain with their master; two of the negro mob in the meantime grasping Colonel Wheeler by the collar, and threatening to cut his throat if he made any resistance.

The slaves were borne along to a hackney coach that was in waiting, and were conveyed to some place of concealment; Mr. Williamson following and urging forward the mob; and giving his name and address to Colonel Wheeler, with the declaration that he held himself responsible towards him for whatever might be his legal rights; but taking no personally active part in the abduction after he had left the deck.

I allowed a writ of habeas corpus at the instance of Colonel Wheeler, and subsequently an alias; and to this last Mr. Williamson made return, that the persons named in the writ, “nor either of them, are not now nor was at the time of issuing of the writ, or the original writ, or at any other time, in the custody, power, or possession of the respondent, nor by him confined or restrained: wherefore he cannot have the bodies,” etc.

At the hearing I allowed the relator to traverse this return; and several witnesses, who were asked by him, testified to the facts as I have recited them. The District Attorney, upon this state of facts, moved for Williamson’s commitment: 1. For contempt in making a false return; 2. To take his trial for perjury.

Mr. Williamson then took the stand to purge himself of contempt. He admitted the facts substantially as in proof before; made it plain that he had been an adviser of the project, and had given it his confederate sanction throughout. He renewed his denial that he had control at any time over the movements of the slaves, or knew their present whereabouts. Such is the case, as it was before me on the hearing.

I cannot look upon this return otherwise than as illusory – in legal phrase – as evasive, if not false. It sets out that the alleged prisoners are not now, and have not been since the issue of the habeas corpus, in the custody, power or possession of the respondent; and in so far, it uses legally appropriate language for such a return. But it goes further, and by added words, gives an interpretation to that language, essentially variant from its legal import.

It denies that the prisoners were within his power, custody or possession, at any time whatever. Now, the evidence of respectable, uncontradicted witnesses, and the admission of the respondent himself, establish the fact beyond controversy, that the prisoners were at one time within his power and control. He was the person by whose counsel the so called rescue was devised. He gave the directions, and hastened to the pier to stimulate and supervise their execution. He was the spokesman and first actor after arriving there. Of all the parties to the act of violence, he was the only white man, the only citizen, the only individual having recognized political rights, the only person whose social training could certainly interpret either his own duties or the rights of others, under the constitution of the land.

It would be futile, and worse, to argue that he who has organized and guided, and headed a mob, to effect the abduction and imprisonment of others – he in whose presence and by whose active influence the abduction and imprisonment have been brought about – might excuse himself from responsibility by the assertion that it was not his hand that made the unlawful assault, or that he never acted as the jailer. He who unites with others to commit a crime, shares with them all the legal liabilities that attend on its commission. He chooses his company and adopts their acts.

This is the retributive law of all concerted crimes; and its argument applies with peculiar force to those cases, in which redress and prevention of wrong are sought through the writ of habeas corpus. This, the great remedial process by which liberty is vindicated and restored, tolerates no language, in the response which it calls for, that can mask a subterfuge. The dearest interests of life, personal safety, domestic peace, social repose, all that man can value, or that is worth living for, are involved in this principle. The institutions of society would lose more than half their value, and courts of justice become impotent for protection, if the writ of habeas corpus could not compel the truth – full, direct, and unequivocal – in answer to its mandate.

It will not do to say to the man, whose wife or whose daughter has been abducted, “I did not abduct her; she is not in my possession; I do not detain her; inasmuch as the assault was made by the hand of my subordinates, and I have forborne to ask where they propose consummating the wrong.”

It is clear, then, as it seems to me, that in legal acceptance the parties whom this writ called on Mr. Williamson to produce, were at one time within his power and control; and his answer, so far as it relates to his power over them, makes no distinction between that time and the present. I cannot give a different interpretation to his language from that which he has practically given himself, and cannot regard him as denying his power over the prisoners now, when he does not aver that he has lost the power which he formerly had.

He has thus refused, or at least he has failed, to answer to the command of the law. He has chosen to decide for himself upon the lawfulness as well as the moral propriety of his act, and to withhold the ascertainment and vindication of the rights of others from that same forum of arbitrament on which all his own rights repose. In a word, he has put himself in contempt of the process of this court and challenges its action.

That action can have no alternative form. It is one too clearly defined by ancient and honored precedent, too indispensable to the administration of social justice and the protection of human right, and too potentially invoked by the special exigency of the case now before the court, to excuse even a doubt of my duty or an apology for its immediate performance.

The cause was submitted to me by the learned counsel for the respondent, without argument, and I have therefore found myself at some loss to understand the grounds on which, if there be any such, they would claim the discharge of their client. One only has occurred to me as, perhaps, within his view; and on this I think it right to express my opinion. I will frankly reconsider it, however, if any future aspect of the case shall invite the review.

It is this: that the persons named in this writ as detained by the respondent, were not legally slaves, inasmuch as they were within the territory of Pennsylvania when they were abducted.

Waiving the inquiry whether, for the purpose of this question, they were within the territorial jurisdiction of Pennsylvania while passing from one state to another upon the navigable waters of the United States – a point on which my first impressions are adverse to the argument – I have to say:

I. That I know of no statute, either of the United States, or of Pennsylvania, or of New Jersey, the only other state that has a qualified jurisdiction over this part of the Delaware, that authorises the forcible abduction of any person or any thing whatsoever, without claim of property, unless in aid of legal process.

2. That I know of no statute of Pennsylvania, which affects to divest the rights of property of a citizen of North Carolina, acquired and asserted under the laws of that state, because he has found it needful or convenient to pass through the territory of Pennsylvania.

3. That I am not aware that any such statute, if such a one were shown, could be recognized as valid in a court of the United States.

4. That it seems to me altogether unimportant whether they were slaves or not. It would be the mockery of philanthropy to assert, that, because men had become free, they might therefore be forcibly abducted.

I have said nothing of the motives by which the respondent has been governed; I have nothing to do with them; they may give him support and comfort before an infinitely higher tribunal; I do not impugn them here. Nor do I allude, on the other hand, to those special claims upon our hospitable courtesy which the diplomatic character of Mr. Wheeler might seem to assert for him. I am doubtful whether the acts of Congress give to him and his retinue, and his property, that protection as a representative of the sovereignty of the United States, which they concede to all sovereignties besides. Whether, under the general law of nations, he could not ask a broader privilege than some judicial precedents might seem to admit, is not necessarily involved in the cause before me. It is enough that I find, as the case stands now, the plain and simple grounds of adjudication, that Mr. Williamson has not returned truthfully and fully to the writ of habeas corpus. He must, therefore, stand committed for a contempt of the legal process of the court.

As to the second motion of the District Attorney – that which looks to a committal for perjury – I withhold an expression of opinion in regard to it. It is unnecessary, because Mr. Williamson being under arrest, he may be charged at any time by the Grand Jury; and I apprehend that there may be doubts whether the affidavit should not be regarded as extrajudicial.

Let Mr. Williamson, the respondent, be committed to the custody of the marshal without bail or mainprize, as for a contempt of the court in refusing to answer to the writ of habeas corpus, heretofore awarded against him at the relation of Mr. Wheeler.

N. B. A motion of the prisoner’s counsel for leave to amend the return was refused, and to a question for what time the imprisonment was to be, the judge replied – “While he remains in contempt.”

No. III

The opinion of the Supreme Court of Pennsylvania, delivered by Judge Black, declining to grant the petition of Passmore Williamson

This is an application by Passmore Williamson for habeas corpus. He complains that he is held in custody under a commitment of the district court of the United States, for a contempt of that court in refusing to obey its process. The process which he is confined for disobeying was a habeas corpus commanding him to produce the bodies of certain colored persons claimed as slaves under the law of Virginia.

Is he entitled to the writ he has asked for? In considering what answer we shall give to this question, we are, of course, expected to be influenced, as in other cases, by the law and the constitution alone. The gentlemen who appeared as counsel for the petitioner, and who argued the motion in a way which did them great honor, pressed upon us no considerations except those which were founded upon their legal views of the subject.

It is argued with much earnestness, and no doubt with perfect sincerity, that we are bound to allow the writ, without stopping to consider whether the petitioner has or has not laid before us any probable cause for supposing that he is illegally detained – that every man confined in prison, except for treason or felony, is entitled to it ex debito justitiæ– and that we cannot refuse it without a frightful violation of the petitioner’s rights, no matter how plainly it may appear on his own showing that he is held in custody for a just cause. If this be true, the case of Ex parte Lawrence, 5 Binn. 304, is not law. There the writ was refused because the applicant had been previously heard before another court. But if every man who applies for a habeas corpus must have it as a matter of right, and without regard to anything but the mere fact that he demands it, then a court or a judge has no more power to refuse a second than a first application.

Is it really true that the special application, which must be made for every writ of habeas corpus, and the examination of the commitment, which we are bound to make before it can issue, are mere hollow and unsubstantial forms? Can it be possible that the law and the courts are so completely under the control of their natural enemies, that every class of offenders against the Union and the state, except traitors and felons, may be brought before us as often as they please, though we know beforehand, by their own admissions, that we cannot help but remand them immediately? If these questions must be answered in the affirmative, then we are compelled, against our will and contrary to our convictions of duty, to wage a constant warfare against the federal tribunals by firing off writs of habeas corpus upon them all the time. The punitive justice of the state would suffer still more seriously. The half of the Western Penitentiary would be before us at Philadelphia, and a similar proportion from Cherry Hill and Moyamensing would attend our sittings at Pittsburgh. To remand them would do very little good; for a new set of writs would bring them all back again. A sentence to solitary confinement would be a sentence that the convict should travel for a limited term up and down the state, in company with the officers who might have him in charge. By the same means the inmates of the lunatic asylums might be temporarily enlarged, much to their own detriment; and every soldier or seaman in the service of the country could compel his commander to bring him before the court six times a week.

But the habeas corpus act has never received such a construction. It is a writ of right, and may not be refused to one who shows a prima facie case entitling him to be discharged or bailed. But he has no right to demand it who admits that he is in legal custody for an offence not bailable and he does make what is equivalent to such an admission when his own application and the commitment referred to in it show that he is lawfully detained. A complaint must be made and the cause of detainer submitted to a judge before the writ can go. The very object and purpose of this is to prevent it from being trifled with by those who manifestly have no right to be set at liberty. It is like a writ of error in a criminal case, which the court or judge is bound to allow if there be reason to suppose that an error has been committed, and equally bound to refuse if it be clear that the judgment must be affirmed.

We are not aware that any application to this court for a writ of habeas corpus has ever been successful where the judges, at the time of the allowance, were satisfied that the prisoner must be remanded. The petitioner’s counsel say there is but one reported case in which it was refused, (5 Binn. 304;) and this is urged in the argument as a reason for supposing that in all other cases the writ was issued without examination. But no such inference can fairly be drawn from the scarcity of judicial decisions upon a point like this. We do not expect to find in reports so recent as ours those long-established rules of law which the student learns from his elementary books, and which are constantly acted upon without being disputed.

The habeas corpus is a common law writ, and has been used in England from time immemorial, just as it is now. The statute of 31 Char. II. c. 2, made no alteration in the practice of the courts in granting these writs. (3 Barn. and Ald. 420 to Chitty’s Reps. 207.) It merely provided that the judges in vacation should have the power which the courts had previously exercised in term time, (1 Chitty’s Gen. Prac. 686,) and inflicted penalties upon those who should defeat its operation. The common law upon this subject was brought to America by the colonists; and most, if not all of the states, have since enacted laws resembling the English statute of Charles II. in every principal feature. The constitution of the United States declares that “the privilege of a writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.” Congress has conferred upon the federal judges the power to issue such writs according to the principles and rules regulating it in other courts. Seeing that the same general principles of common law on this subject prevail in England and America, and seeing also the similarity of their statutory regulations in both countries, the decisions of the English judges, as well as of the American courts, both state and federal, are entitled to our fullest respect, as settling and defining our powers and duties.

Blackstone (3 Com. 132) says the writ of habeas corpus should be allowed only when the court or judge is satisfied that the party hath probable cause to be delivered. He gives cogent reasons why it should not be allowed in any other case, and cites with unqualified approbation the precedents set by Sir Edward Coke and Chief Justice Vaughan in cases where they had refused it. Chitty lays down the rule (1 Cr. Law, 101; General Prac. 686-7.) It seems to have been acted upon by all the judges. The writ was refused in Rex v. Scheiner, (1 Burr. 765,) and in the case of the three Spanish sailors, (3 Black. Rep. 1324.) In Hobhouse’s case, (2 Barn. and Ald. 420,) it was fully settled by a unanimous court, as the true construction of the statute, that the writ is never to be allowed, if upon view of the commitment it be manifest that the prisoner must be remanded. In New York, when the statute in force there was precisely like ours, (so far I mean as this question is concerned,) it was decided by the supreme court (5 Johns. 282) that the allowance of the writ was a matter within the discretion of the court, depending on the grounds laid in the application. It was refused in Huster’s case, (1, 2 C. 136) and in Ex parte Ferguson, (9 Johns. Rep. 139.) In addition to this we have the opinion of Chief Justice Marshall, in Watkins’s case, (3 Peters, 202) that the writ ought not to be awarded if the court is satisfied that the prisoner must be remanded. It was accordingly refused by the supreme court of the United States in that case, as it had been before in Kearney’s case.

On the whole, we are thoroughly satisfied that our duty requires us to view and examine the cause of detainer now, and to make an end of the business at once, if it appear that we have no power to discharge him on the return of the writ.

This prisoner, as already said, is confined on a sentence of the district court of the United States for a contempt. A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment, even of a subordinate state court, cannot be disregarded, reversed or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until it is regularly brought up for revision. We decided this three years ago at Sunbury, in a case which we all thought one of much hardship. But the rule is so familiar, so universally acknowledged, and so reasonable in itself, that it requires only to be stated. It applies with still greater force, or at least for stronger reasons, to the decisions of the federal courts. Over them we have no control at all, under any circumstances, or by any process that could be devised. Those tribunals belong to a different judicial system from ours. They administer a different code of laws, and are responsible to a different sovereignty. The district court of the United States is as independent of us as we are of it – as independent as the supreme court of the United States is of either. What the law and the constitution have forbidden us to do directly on writ of error, we, of course, cannot do indirectly by habeas corpus.

But the petitioner’s counsel have put his case on the ground that the whole proceeding against him in the district court was coram non judice, null and void. It is certainly true that a void judgment may be regarded as no judgment at all; and every judgment is void which clearly appears on its own face to have been pronounced by a court having no jurisdiction or authority in the subject matter. For instance, if a federal court should convict and sentence a citizen for libel, or if a state court, having no jurisdiction except in civil pleas, should try an indictment for a crime and convict the party – in these cases the judgments would be wholly void. If the petitioner can bring himself within this principle, then there is no judgment against him; he is wrongfully imprisoned, and we must order him to be brought out and discharged.

What is he detained for? The answer is easy and simple. The commitment shows that he was tried, found guilty, and sentenced for contempt of court, and nothing else. He is now confined in execution of that sentence, and for no other cause. This was a distinct and substantive offence against the authority and government of the United States. Does any body doubt the jurisdiction of the district court to punish contempt? Certainly not. All courts have this power, and must necessarily have it; otherwise they could not protect themselves from insult, or enforce obedience to their process. Without it they would be utterly powerless. The authority to deal with an offender of this class belongs exclusively to the court in which the offence is committed, and no other court, not even the highest, can interfere with its exercise, either by writ of error, mandamus, or habeas corpus. If the power be abused, there is no remedy but impeachment.

The law was so held by this court in M’Laughlin’s case, (5 W. & S. 275,) and by the supreme court of the United States in Kearney’s case, (7 Wharton, 38.) It was solemnly settled as part of the common law, in Brass Crossley’s case, (3 Wilson, 183,) by a court in which sat two of the foremost jurists that England ever produced. We have not the smallest doubt that it is the law; and we must administer it as we find it. The only attempt ever made to disregard it was by a New York judge, (4 Johns. Rep. 345,) who was not supported by his brethren. This attempt was followed by all the evil and confusion which Blackstone and Kent and Story declared to be its necessary consequences. Whoever will trace that singular controversy to its termination will see that the chancellor and the majority of the supreme court, though once outvoted in the Senate, were never answered.

The Senate itself yielded to the force of the truths which the supreme court had laid down so clearly, and the judgment of the court of errors in Yates’s case (8 Johns. 593) was overruled by the same court the year afterward in Yates v. Lansing, (9 Johns. Rep. 403,) which grew out of the very same transaction, and depended on the same principles. Still further reflection at a later period induced the Senate to join the popular branch of the legislature in passing a statute which effectually prevents one judge from interfering by habeas corpus with the judgment of another on a question of contempt.

These principles being settled, it follows irresistibly that the district court of the United States had power and jurisdiction to decide what acts constitute a contempt against it; to determine whether the petitioner had been guilty of contempt; and to inflict upon him the punishment which in his opinion he ought to suffer. If we fully believed the petitioner to be innocent – if we were sure that the court which convicted him misunderstood the facts, or misapplied the law – still we could not reëxamine the evidence or rejudge the justice of the case, without grossly disregarding what we know to be the law of the land. The judge of the district court decided the question on his own constitutional responsibility. Even if he could be shown to have acted tyrannically or corruptly, he could be called to answer for it only in the Senate of the United States.

But the counsel for the petitioner go behind the proceeding in which he was convicted, and argue that the sentence for contempt is void, because the court had no jurisdiction of a certain other matter which it was investigating, or attempting to investigate, when the contempt was committed. We find a judgment against him in one case, and he complains about another, in which there is no judgment. He is suffering for an offence against the United States; and he says he is innocent of any wrong to a particular individual. He is conclusively adjudged guilty of contempt; and he tells us that the court had no jurisdiction to restore Mr. Wheeler’s slaves.

It must be remembered that contempt of court is a specific criminal offence. It is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. In either mode of trial the adjudication against the offender is a conviction, and the commitment in consequence is execution. (7 Wheat. 38.) This is well settled, and I believe has never been doubted. Certainly the learned counsel for the petitioner have not denied it. The contempt may be connected with some particular cause, or it may consist in misbehavior which has a tendency to obstruct the administration of justice generally. When it is committed in a pending cause, the proceeding to punish it is a proceeding by itself. It is not entitled in the cause pending, but on the criminal side. (Wall. 134.)

The record of a conviction for contempt is as distinct from the matter under investigation, when it was committed, as an indictment for perjury is, from the cause in which the false oath was taken. Can a person convicted of perjury ask us to deliver him from the penitentiary, on showing that the oath on which the perjury is assigned, was taken in a cause of which the court had no jurisdiction? Would any judge in the commonwealth listen to such a reason for treating the sentence as void? If, instead of swearing falsely, he refuses to be sworn at all, and he is convicted, not of perjury, but of contempt, the same rule applies, and with a force precisely equal. If it be really true that no contempt can be committed against a court while it is enquiring into matter beyond its jurisdiction, and if the fact was so in this case, then the petitioner had a good defence, and he ought to have made it on his trial. To make it after conviction is too late. To make it here is to produce it before the wrong tribunal.

Every judgment MUST be conclusive until reversed. Such is the character, nature, and essence of all judgments. If it be not conclusive, it is not a judgment. A court must either have power to settle a given question finally and forever, so as to preclude all further inquiry upon it, or else it has no power to make any decision at all. To say that a court may determine a matter, and that another court may regard the matter afterward as open and undetermined, is an absurdity in terms.