The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
PART II; OF SOME PARTICULAR RIGHTS
CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
Under a frame of government voluntarily adopted by the people;—under laws for the protection of the rights of the citizens, enacted by legislators of their own choice, and executed by public officers, whose offices, either directly or indirectly, depend also upon the choice of the people, and who, at any rate are responsible to them for any neglect of duty or other official malversation [misconduct in public office], it would be incongruous to suppose, that any of the civil or political rights of the citizens could be infringed by the public officers themselves, either with impunity to the transgressor, or without ample means of obtaining adequate redress to the injured party. And, it is true, that the people of the United States, in the frame of the General Government, as also in those of the respective state governments, have endeavored to make ample provision against such evils, by defining, with as much precision as the nature of the case would admit, the duties of all the public offices, which they have thought fit to create, and by restricting the powers of the officers, to such only as are absolutely necessary to the faithful and effectual discharge of those duties. This remark applies equally to the highest, as well as to the humblest offices and officers in the government. Within the limits of their respective powers, all officers, from the President of the United States, downwards, ought to be submitted to and obeyed; but, if they should overstep the limits of their official authority;—if they should usurp powers not delegated to them by the constitution, or by some law made in pursuance of it, they would cease to be under the protection of their offices, and would be recognized merely as private citizens; and, for any act of injustice or oppression which they might commit, would be liable to a civil or criminal prosecution, in the same manner as a private citizen; with this distinction, that if the wrongdoer has availed himself of his official character, or, of the opportunities which his office affords him, to commit acts of injustice or oppression, it will be considered as a great aggravation of his guilt, in a criminal prosecution, and will be a ground for the jury to find exemplary damages, in a civil action. Because, private injury is here connected with an abuse of the public confidence.
So far as the subject of the present chapter is concerned, such is believed to be the true intention, and theory of the Federal Government, as well as of that of each of the states. And where the wrongdoer is a public officer, to whose office the exercise of political power is not attached, there can seldom be any difficulty in obtaining redress for any wrong done by him. A resort to the tribunals of justice, either of the states, or of the United States, according to circumstances, will usually be sufficient for this purpose.
Cases however are occurring frequently, in some of which the means of redress are not sufficiently easy, or do not seem adequate to the purposes of justice, and, in others, which however it is a consolation to think are much more rare, it seems difficult to say with certainty in what manner and to what extent, a person injured, may find a remedy for the wrong which he suffers.
1. Suppose one of the states should enact an unconstitutional law, forbidding under very heavy penalties an act which, before the enactment of the law, was entirely innocent; suppose that a citizen of another state should happen to be the victim of such law, being apprehended within the territory of the former state, and violating such unconstitutional law, and tried, sentenced, and imprisoned under it; this, without question,would be a great hardship upon him: but what remedy can he have? It may be answered here, that, according to the true theory of the federal system, there should be no difficulty at all in this case; because, in the first place, the judges of the state court before whom such prisoner would be brought for trial, would have full authority as well as a perfect right, to decide the law to be unconstitutional, if they thought so, and to discharge the prisoner. But, if the same considerations which induced the legislature of such state to enact the law, or any others, should induce the judges of the court to decide, that the law was constitutional, the prisoner would have a right to bring his case before the Supreme Court of the United States, by a writ of error, and the judges of that court, if they considered the law .unconstitutional, would reverse the decision of the State Court and would issue a mandamus accordingly. If the State Court disregarded the decision or mandate of the Supreme Court of the United States, and, on a second writ of error, that court should attempt to execute its own decree and the execution of it should be resisted by the State Government, and the marshal of the district should be unable to raise a sufficient force to release the prisoner,—it would then become the duty of the president to interpose; because the constitution of the United States makes it his duty ‘to take care that the laws are faithfully executed.’ If he should omit to do this, he would violate his oath. If the president should avow the doctrine, that a president is under no obligation to execute any law, which he does not think constitutional, and should declare that he did not think such decision to be so, and therefore should not assist in executing it, it would seem to be a great usurpation of power; because, under this pretense he might refuse to execute any law, which did not please him, even though it were sanctioned by the votes of two thirds of the senate and house of representatives. In any such case, he might well be impeached for neglect of duty, from whatever cause it might arise; because, it would become useless for congress to enact laws, if the president would not do his duty in the execution of them, where it required a greater power for that purpose than the marshal could raise. This is the very case particularly contemplated in the constitution, where it requires the president to take care that the laws are faithfully executed. If however a majority of the house of representatives would not agree to an impeachment, the subject must be left to the decision of the people at the next election for president; and, if he should then be re-elected, his doctrine would be sanctioned, and the effect of it would be, to alter the frame of government from a republic to an elective monarchy, the term of office being four years, renewable at the will of the people. The president would then virtually have an unqualified veto upon all laws; because, no state could be compelled to submit to any law, which was passed without the president’s sanction, though by two thirds of congress. Such an unqualified veto is a greater power, than any but kings pretend to claim, and would render the provisions of the constitution on this subject useless. In fact the constitution would become like some ill-contrived instrument, which has strength enough to overcome inconsiderable obstacles, but, when opposed to any weighty ones, flies off the handle. Rational liberty and good order, under a government of laws, would then become a mere farce; and is there not danger, that it might be followed, in the inverse order of theatrical representations, by the tragedy of revolution, anarchy, and military despotism?
A case, where the citizens of one or more of the states should be oppressed by an unconstitutional law of another state, after the Supreme Court of the United States had decided such law to be unconstitutional, one would naturally suppose to be too improbable to deserve a moment’s consideration; since, in general, it is matter of boast, that, in no country in the world, are the rights of the citizens better protected than in the United States. Yet, in what respect does this imaginary case differ from that of the two American citizens now imprisoned in the state of Georgia? These citizens, at the time of the passage of the unconstitutional law alluded to, were residing within the Cherokee Territory; and because they continued to reside there without complying with the requirements of a certain act of the state of Georgia, which the Supreme Court has decided to be unconstitutional, they are sentenced to hard labor in the penitentiary, or state prison, of that state, for four years; and notwithstanding such decision of the Supreme Court, they are still detained in ‘durance vile,’ among malefactors and felons. This seems to be a case of peculiar hardship upon these citizens. For, they depended on the laws and constitution of the United States for protection, and have committed no crime; yet they are not protected. It seems singular, that though Congress was in session when the decree of the Supreme Court of the United States was pronounced, and received notice that the decree would not be obeyed, and knew, that, owing to the adjournment of the Supreme Court, which sits only once a year, these persons can have no relief by the intervention of that court, until the next session, yet they did not adopt any measures to procure the release of these persons from imprisonment. It seems singular, too, that though Congress must be aware of the intention of the state of Georgia, not to obey the decree, nor to suffer it to be executed by the Supreme Court, which, having no political power, in all probability will not be able of itself to execute its own decree in this case,, should have adjourned without coming to any resolution on a subject, in which the honor of the United States seems concerned. It is true, some may imagine, that, by this delay, a collision with the state of Georgia may probably be avoided, because, it is not improbable, that the hardships of imprisonment, might induce the prisoners to make concessions, and petition for their pardon and release. But, if they should adopt this course, and should actually be pardoned upon their submission, it would stamp indelible disgrace upon the Union; because it would then be apparent, that though they were citizens of the United States, and had committed no crime, yet the government either could not or would not protect them; and, besides being unjustly punished, these persons would be obliged to succumb to their oppressors, in order to obtain their release before the whole term of their imprisonment expires. A temporizing policy is sometimes prudent, wise and humane, but never can be honorable when it is at the expense of an injured person, who is suffering imprisonment, disgrace, ignominy, and other hardships, by the delay.
2. Another class of cases, but of a totally different kind, in which injury may be inflicted by persons in authority, and where the remedy is not always so easy, as it is desirable it should be, is where a military commander avails himself of the force under his command, and the discipline of the camp, and the habits of implicit obedience of his troops, to commit acts of oppression upon the citizens. Such oppression may be practiced in a great variety of ways; as, by seizing upon supplies without necessity, and in an arbitrary manner not warranted by law; by quartering his troops upon the people in a manner, which the law does not permit; by not restraining his troops from ill-treating the people, and committing gross irregularities or excesses among them; by abusing the power, which the force under him, enables him to exercise, by declaring and enforcing martial law, to the disturbance of the jurisdiction of the civil tribunals, and to the oppression of the citizens, without any legal authority whatever; by arresting and imprisoning or sending away the citizens, without any justifiable cause. Recruiting officers also, sometimes, are guilty of oppressive acts in the fraudulent enlistment of persons under age, and by taking an unfair advantage of persons, whom they have found in a state of intoxication, or have entrapped into it. In most, if not all of these cases, the law provides a remedy, but it is not always effectual; for, the military commander will sometimes set the process of the courts at defiance, at least for a time, by means of the force under his command. Besides, the remedy is not sufficiently speedy, being designed rather to give damages, or to punish for an injury, than to interpose, and prevent its infliction or continuance. Acts of oppression are also sometimes committed by courtsmartial, either from a mistake of their proper jurisdiction, or some other less excusable motive. In any such case, however, the sentence of the court will be no protection to the officer who executes it, but the court and the officers will all be trespassers, and an action may be maintained against them as such. See Cranch, 330.
But there is reason to apprehend, that persons not liable to be tried by martial law, may sometimes be punished, and even capitally, by the sentence of a court-martial, which has no legal authority. In this case what is to be done? In Dec. 16,4814, General Jackson proclaimed martial law at New Orleans, and expressed his determination rigidly to enforce the articles of war. The effect of any such illegal measure would naturally be, to make the private citizens, who neither belonged to the army nor were embodied in the drafted militia, liable to be tried by a court-martial, and in some cases punished capitally for offenses against a law, designed only for the regular army and the militia in actual service. See also the case of Stacey, Infra.
3. Another class of cases, where the citizens might be oppressed, without having any sufficient, prompt remedy, redress or reparation, would result from an oppressive exercise of the power of committing for contempts, by either house of congress, or of the state legislatures; or, by any of the tribunals of justice.
So far as it relates to contempts of court, offered by persons, who are neither officers of court, suitors nor witnesses, and committed out of the presence of the court, there does not seem to be any settled law, in the courts of common law. It would be well, if any such power were disclaimed by the courts, so that the statute of the United States might be considered as declaratory of the law recognized in the state courts, on this subject; and, in case any act were committed, tending to bring the administration of justice into contempt, the guilty person were proceeded against by way of indictment for misdemeanor.
With regard to witnesses, as the law is settled, that the court may commit to prison, any witness who refuses to testify or to answer what the court consider a legal question; and, as different judges may and do entertain very different opinions as to the legality of the same questions; and, if a witness should be thus compelled to answer a question, which in fact is illegal, it does not appear how he can avoid the ill consequences which may arise,—it might not be amiss to make some legislative provision on the subject, so that the law may be certain, and as little as possible left to the discretion of the presiding judge.
For an abuse of the power of committing for a contempt, by a court of competent jurisdiction, however arbitrary, and oppressive in its effects, it does not appear, that a party injured can have any redress, unless express malice can be proved, and the total want of probable cause or legal grounds for the commitment. The justices of inferior tribunals indeed may be indicted for such oppression, and there seems to be no sufficient reason, why those of the superior courts should not be liable to similar prosecutions, in case of express malice and gross abuse of power. But the judges of courts in general are not to be called to account for what they do, acting judicially within their jurisdictions, however incorrect and mistaken their opinions may be. In the case of Charles Knowles, who was indicted before the King’s bench for murder, he pleaded that he was Earl of Banbury. The attorney general, replied that he had on a former occasion claimed the privilege of peerage before the house of peers, but they had dismissed his petition. The defendant demurred, and the court sustained the demurrer and quashed the indictment. This was considered as an infringement of the privileges of the house of lords. Ch. Jus. Holt, being called before the house of lords, and desired to give an account of the reasons of the proceedings of the court in that case, answered: ‘I gave judgment as it appears on the record. It would be submitting to an arraignment for having given judgment, if I gave any reasons here. I gave my reasons in another place at large.—
‘I am not to be arraigned in any way for what I do judicially. The judgment may be arraigned in a proper method, by writ of error. I might answer, if I would, but I think it safest for me to keep myself under the protection the law has given me. I look upon this as an arraignment; I insist, if I am arraigned, I ought not to answer.’ 12 St. Fr. 1179.
But an abuse of the power of committing for contempts, may be the ground of an impeachment. This subject was much discussed in the impeachment of Judge Peck; and it was thought expedient to declare the law on the subject, by statute. See ante, p. 240. It may not be amiss to remark here, that the courts, both in England and in this country, claim and exercise the power of suspending attorneys and counselors, from practice in their courts, either for professional misbehavior, or for gross contempts. An alleged abuse of this power, was one of the grounds of impeachment in the case of Judge Peck. How far the courts have a power to suspend counselors from practice, for a contempt, in those states where the people, by statute law, have a right to appoint whom they please, to prosecute and defend for them, by a special power of attorney, does not seem clear. It seems doubtful, whether the court can deprive the people of their statute privilege in this respect, by any mere act of their own, even though the contempt should be so gross as to deserve fine and imprisonment. In the trial of John P. Zenger, a printer of New York, in the year 1735, for a libel against the government, his counsel, James Alexander and William Smith, excepted to the power of the Ch. Justice, James de Lancey, to sit in the cause, on account of alleged informality in his commission, in various respects, especially, because it was granted, during the king’s pleasure, instead of during good behavior. The court intimated to them what they intended should be the consequences of making such exceptions, but they persisted in filing them; the court then immediately struck them off the roll of attorneys and excluded them from their whole practice as attorneys and counselors, and would not even suffer them to take minutes of the trial in writing. This was an unwarrantable abuse of power, against men, who had done nothing. more than urge an embarrassing exception to the validity of the Ch. Justice’s commission.(fn1)
But on this subject, further remarks are superfluous, as it is believed, few cases will ever arise, which will make it necessary to draw any lines, more distinct than those, which seem to be understood and observed throughout the courts of the United States; as well as those of the respective states; viz. friendly indulgence on the part of the court, and respectful consideration on the part of the bar.
With regard to the remedy, if either house of congress, or, the senate or house of representatives or delegates of either of the states, should oppress a private citizen, by committing him to prison under pretext of a contempt, when he had been guilty of none, and perhaps in fact had done nothing more than exercise his legal right, the law does not seem settled. See ante p. 248, Sic. In England, the law in general seems clear, that either house of parliament has the exclusive cognizance of its own privileges, and consequently of all contempts against itself; so that, whatever the opinion of the court of king’s bench may be on the subject, the judges have no power to discharge the person in contempt, from imprisonment. See infra, under habeas corpus. A few remarks have already been made on this subject in a different connexion.
See ante, p. 240, &c., in which it is contended, that no such unlimited power is possessed by either house of congress, and whether the legislature of any particular state, or either branch of it, possesses such power, must depend upon the proper construction of the constitution of such state. If a case of oppression by the abuse or usurpation of such power, by either house of congress, should ever arise, it would be most agreeable to the spirit of the federal constitution, to consider the supreme court as having full power to decide according to the constitution, the law, and natural right, and consequently having authority to discharge the prisoner from his illegal and unconstitutional imprisonment. For, the analogy between the relations existing between the court of king’s bench and parliament, in England on one side; and between the supreme court of the United States and congress, on the other, does not hold good in all particulars. The difference is, that the court of king’s bench is an inferior court, not only to the high court of parliament, but to each of the houses of parliament, when sitting as a court, for the decision of questions in relation to its own privileges, in which case, it is a court of record. But the supreme court of the United States, is the highest tribunal, acknowledged by the constitution, for the decision of constitutional questions, and cannot be controlled by congress in any other way, than by altering the law, for the time to come, by legislative acts made agreeably to the constitution. The right of defining their own privileges, therefore ought to be exercised by statutes. The liberties of the citizens would then be secure, because both houses of congress must concur to enact a law, and it must have the sanction of the president. Even then, however, it must be agreeable to the constitution, or it will be void; and the supreme court of the United States has jurisdiction to determine it to be so. But, if each house of congress has the power to determine its own privileges, whenever a case arises, without any previous law, by a decision, which, whether constitutional or not, must be submitted to without a right to appeal to the supreme court, then such declaration of their rights by one of the houses of congress, and without the ratification of the other, or the president’s signature, will have more power than a statute of the United States, regularly enacted by both houses of congress, and ratified by the president. Besides, if congress, or either house, have such an unqualified ‘power of declaring their own privileges, and of .punishing for contempts, without revision by another tribunal, then they are in effect above law, and consequently without law, and possess the omnipotence, as it is called, of the British parliament. The consequence may be, that, under the specious pretext of punishing for contempts, which in fact may only be committed in resisting usurped and unconstitutional privileges, they may destroy the freedom of the press, and with that, every other civil and political right, by oppressing all those, who venture to exercise such rights, in an unacceptable manner. The same arguments apply by way of analogy, to the legislatures of the states, and the supreme courts of such states, respectively. In this way, by considering such courts as having authority to examine into the nature of the contempts alleged as causes of commitment, and to discharge the prisoner, when the causes are insufficient, there will remain no room for the practice of oppression, against which there can be no remedy. See further on this subject Infra; in this chapter.
4. From the government itself, though bound to show a parental regard to the rights and interests of the people, the protection of which is the principal ground of its establishment, individuals or certain classes of the citizens, sometimes suffer, what they feel to be a hardship, but, which coming from their rulers, they are unwilling to think an act of absolute injustice. This is seldom done by the direct infliction of wrong; but, when it happens, most usually consists in delaying the hearing, allowance or adjustment of the claims of the citizens, either of which must be considered a denial of right. Those American merchants who have claims for spoliations, committed by France previous to 1800, in satisfaction of which, when proved in the manner stipulated in the conventions made between France and the United States, the French government agreed, that a sum not exceeding twenty millions of francs, might be reserved by the government of the United States, out of the purchase money to be paid for the purchase of Louisiana, but which claims have not yet been settled, consider themselves as suffering a hardship of this kind. From the lapse of time, many of those merchants, whose property was thus confiscated or condemned by France, have now deceased. In the same way, probably, has resulted the loss of many of their documents and papers; so that the establishment of their claims becomes every day more difficult. The families of some of these claimants, also, are reduced to indigence; and, though the government will probably soon be compelled to reduce its revenue, for want of some constitutional mode of expenditure, yet these claims are not paid or allowed, and indeed have never been heard any further than by petition and remonstrance, not finally acted upon.
This delay occasions another hardship to these claimants in this, that so many political generations of members of congress have succeeded each other, during the interval between the convention with France and the present day, that those, who are now members, do not seem so well acquainted with the equity of these claims, and do not seem to feel so much sympathy for the claimants, as might naturally be expected. For, a certain member, it is said, has expressed an opinion, that he should not vote that the whole of these claims be allowed. Why not? Is this sound doctrine? It cannot be supposed, that he meant, that the merchants should be allowed no more than they furnished reasonable evidence to prove. For, that is the whole of what they claim. But, after the claim is proved, what distinction can be made between the part to be allowed, and the part to be rejected? The rule must be to pay so much as is satisfactorily proved, and no more. For, congress has no right, either to bestow money upon the merchants on a groundless claim, or to withhold any part of what is justly due to them. It is hoped, that no member of congress, can have so degrading an opinion of his constituents, as to suppose, that the allowance of the whole of a just claim can be unpopular with them; for what is this, but to suppose, that they are actuated by the low envy, which illiberal minds are prone to indulge, at seeing a large sum paid to others, though it is justly their due? For, a disapprobation of the allowance of any just claim, can be imputed to no better motive.
5. It may not be amiss to remark, though in strictness it does not fall within the subject of this chapter, that the peaceable citizens do not always seem to have adequate protection against the disorders and outrages of mobs and rioters. There is hardly a year passes, that complaints are not made, in some place or other within the United States, of injuries done to the property of individuals by disorderly assemblies of ignorant and profligate persons. It is true, they sometimes are actuated by a desire to reform abuses, to remove nuisances, to right the injured, and to punish wrong doers; but, notwithstanding these chivalric intentions, their proceedings, which are nothing better than acts of violence and disorder, are not only illegal but highly criminal. For, the law has provided a regular course of proceedings for the correction and reform of all abuses, and has appointed police officers both capable and trustworthy, who will perform all such duties in a regular and proper manner; so that there is never any occasion for the assistance of mobs, which are proverbially cruel, faithless, rash and cowardly. Those persons, who are fond of acting in their own person, though without a legal warrant, in the reform of abuses by summary process, should be informed, that as their conduct is unlawful, if any person should unfortunately be killed in resisting their acts, it will be murder, not only in the immediate killer, but in all who have assembled with a design to carry their attempts into execution, by force. For, the rule of law is settled,’that if two, three or more are doing an unlawful act, as abusing the passengers in a street or highway, and one of them kills a passenger, it is murder, in all.’ See the opinion of Ch. Jus. Holt, 12 Mod. 156. For the same reason, when Ld. Dacres and some others, went into a park to hunt, and agreed to kill all that should resist them, and one of them in the absence of Ld. Dacres, and when he was a quarter of a mile off, killed a person who asked him ‘what business he had there,’ it was adjudged murder, in all; and Ld. Dacres was hanged. Kelyngs’ R. 87.
There is frequently too great indulgence shown by the magistrates to tumultuous assemblies of profligate persons. To suppress them, at once, on the first appearance of disorder and irregularity, by arresting their ringleaders, and, where necessary, by exhibiting to them a force which they dare not look in the face, is the best policy; because it is not only a decisive step, but it is also the most humane that can be adopted. For, mobs and rioters are almost always encouraged in their outrages, by the forbearance of the police, which they generally ascribe to timidity. And thus the magistrates, who perhaps, at the beginning of the tumult, thought it too harsh a measure, to send a disorderly individual to prison, have afterwards been compelled, in self-defence, to shed his blood, and perhaps that of others beside.
Such disturbances of the public peace, perhaps may sometimes be ascribed in part to the prevailing influence of erroneous opinions; and because, according to the democratic theory, the supreme power in the last resort, belongs to the people, an assembly of ignorant and profligate persons, under pretence of being the people, will think themselves justified in whatever excesses or outrages they may commit. It is probably from the supposed toleration and impunity of such licentiousness, that Democracy is so great a favorite with such persons. But no regular government can be safe for a moment, if those who entertain such erroneous notions, and bad principles, should ever obtain a commanding influence in society, whether through the force of terror or delusion. Cataline, Caesar Borgia, Masaniello, Jack Cade, fee. are the only ones, who can expect to be popular with disorderly persons of such principles, and, if not put down in season, society must suffer the horrors of revolution and anarchy.
But, in fact, even the magistrates themselves seem sometimes to labor under the delusion, that a multitude of disorderly and riotous persons are the people, and therefore are not to be restrained in any excesses or breaches of social order, that do not amount to enormous outrage. But in fact, such persons are not the people, and have no greater claim to that appellation, than an equal number of convicts from the state prison. For, the convicts are punished for violations of social order, committed individually, and for the most part, in secret. And such flagitious persons are actuated by the same motives, but they are more dangerous, because they act in greater numbers, and set the regulations of society at open defiance.
In order to ascertain, who are the people, it is only necessary to consider by whom are the constitutions of society established —under whose authority laws are enacted. The legislators and magistrates are the ministers of the people; and the laws are enacted by persons chosen by the people. The laws and constitution are therefore the declared will of the people, and those persons who oppose either the laws, the constitution, or the magistrates, whether such persons are demagogues, or whether they are the ignorant or profligate attendants upon demagogues, are the enemies of the people, and disturbers of the public peace. But, if such persons were the people, indeed, and the sovereign power were lodged in their hands, then of all governments, democracy would be the most arbitrary and tyrannical, and, at the same time the most degraded and base.
As individuals who are injured in their persons or property, by unlawful assemblies of rioters, frequently are unable to obtain any redress, because of the disguises which are used on such occasions, it would be good policy to give them a remedy by action, against the town in which the outrages are committed, for the full amount of damages sustained, and to let the towns have a remedy over against the rioters. This responsibility for the misbehavior of others, would induce the orderly and peaceable inhabitants of towns, to provide an efficient police, that would put an immediate stop to every species of tumultuous assembly or riot, before it had time to commit any serious injury.
Of the privilege of the writ of Habeas Corpus. The great security of the citizens against unlawful imprisonment, is the process of habeas corpus. This writ is a writ of right, which any individual held in confinement, without a legal warrant, has a right to demand, for sufficient cause shown, verified by affidavit. The issuing of it, is regulated by Statute Law; and it may usually be had in vacation, from any of the justices of the superior state courts, or, where the imprisonment is under colour of the authority of the United States, or, of some of the courts of the United States, the writ of habeas corpus may be issued by the Supreme Court of the United States, or, in vacation, by one of the justices of such court. But this writ is not a writ of course; for, the court will not grant it except for probable cause, verified by affidavit. See 3 B. and Al. 420. Nor will they grant it in any case, where they perceive beforehand, that the person if brought up, must be remanded. Ibid. See also 3 Peters, 200. The writ will be issued, either at the motion of the party imprisoned, or at the request of any person, who has a right to the custody of such party; as, a father may have this writ for his son, who is a minor; a husband may have this writ for his wife; a guardian, for his ward; a master, for his apprentice. &c. See 1 Cook, 143. Where a woman is ill treated by her husband, or improperly confined, the court will grant a habeas corpus, and if she swears the peace against him, she will not be put in his custody again, nor will he be suffered to take her. 2 Bur. 1115. And, generally, where a person is discharged on habeas corpus, he is of course entitled to protection on his return. 1 Win. Bl. 410.
The wrk is directed to any person, whether an officer or a private individual, who has another in his custody, or under his control. Godb. 44. And the return to the writ must be made by that person.
The prisoner is usually brought in, with a return in writing, containing the causes of commitment or detention. Sometimes however, the writ is returned without bringing in the body, but the causes of commitment are assigned. In the former case, if the causes of detention are not sufficient, the prisoner will be discharged. In the latter case, if the reasons of commitment are insufficient, and no good excuse is assigned for not bringing in the body, the court may at discretion award an alias habeas corpus, or issue an attachment against the person so detaining the prisoner in unlawful confinement. See 5 T. R. 89. Sal. 350. The court will also grant an attachment against any gaoler, who uses a prisoner barbarously or inhumanly. 6 Mo. 137.
If the prisoner is too weak to be brought in, the court will direct all persons interested, as relations, servants, physicians, &tc. to have access to him; but not mere strangers. 2 Bur. 1099.
The object of the writ of habeas corpus being the liberation of such persons, as are imprisoned without sufficient cause, persons committed for treason or felony plainly expressed in the warrant of commitment, as also persons convicted or in execution, are not entitled to the benefit of this writ from the Supreme Court of the United States. Ex parte Tobias Watkins, 3 Pet. 203. The rule is presumed to be the same in most of the state courts. But, with regard to the power of the state courts to interfere, where there has been an abuse of an authority given by the United States, the decisions in state courts have not been uniform. In New York, a habeas corpus to bring up a soldier enlisted in the army of the United States, was refused. 1 Johns. Cas. 137. In the matter of Ferguson, Kent, Ch. Jus. held, that, if a soldier be detained against his will, knowing him to be an infant; or, if though an adult, he has been compelled to enlist by duress or violence, it is a public offence, but an offence of which the supreme court of the state of New York cannot take cognizance. The reason assigned is, that an abuse of an authority of the United States, is an offence against the United States, and exclusively cognizable in their courts. 9 Johns. 240. The habeas corpus was therefore denied in that case, though it appeared by affidavit, that the applicant was a minor of the age of seventeen years and some months. But, in Massachusetts, it has been held, that a state court may discharge, on habeas corpus, a minor who has enlisted into the army of the United States, without the consent of his parent or guardian. 11 Mass. R. 63. The same rule applies, if the minor has neither parents, guardian or master; the minor may be brought in, and discharged at his own request on a habeas corpus. Ibid.
The return of the habeas corpus should express the cause of commitment or detention, with the same certainty as the warrant. But, if a good cause of detention is expressed, though without technical formality, the court will not discharge the prisoner. Where it appears by the return, that the commitment is made by one who has no authority or jurisdiction, or is for a matter, for which by law no man ought to be punished, or, is otherwise illegal, the court will discharge the prisoner. So, if the cause of commitment is alleged so loosely, that the court cannot adjudge, whether it be a reasonable ground of imprisonment or not. See Bushel’s Case. Vaugh. 137. In this remarkable case, Mr. Bushel was one of the jury, who tried William Penn, the colonist, and a Captain Mead, for assembling unlawfully and tumultuously; the jury, though many attempts were made to awe and intimidate them by the Mayor of London, who presided at the trial, acquitted the accused. For this independence, they were fined forty marks a-piece, and were committed to prison for nonpayment of it; but applying for a habeas corpus, and sufficient matter not appearing on the return, the commitment was decided to be illegal, and Bushel was discharged.
The rule in the United States is conformable to the spirit of this decision. For, if the warrant of commitment appears to be illegal, for want of stating some good cause certain supported by oath, the court of the United States will discharge the prisoner. 3 Cranch, 453.
And therefore, when General Wilkinson, in 1807, with an armed force arrested Mr. Alexander, a gentleman of the bar, at New Orleans, and two other gentlemen, Messrs. Bollman and Swartwout, and sent them to Washington, Mr. Alexander was immediately discharged by a justice of the circuit court, and the two others by the supreme court, on a habeas corpus, their arrest being illegal. See 4 Cranch, 75. But the court will look no further, than to see that a sufficient probable cause is contained in the warrant of commitment. 4 Dal. 412.
In the case of Samuel Stacey, a habeas corpus was issued by a commissioner of the state of New York, directed to Com. Chancey and General Lewis, commanding them to bring before the commissioner the body of Stacey, with the cause of detention. General Lewis returned, that the body was not in his custody, &c. The return was considered by the supreme court of that state, to whom the subject was submitted, to be insufficient upon the face of it, because it did not say, that Stacey was not in his possession or power. It was therefore considered evasive and a contempt of process, and an attachment was immediately issued, without any previous rule to show cause. In this case, Chief Justice Kent in the course of his opinion made the following remarks. ‘This is a case which concerns the liberty of the citizen. Stacey is now suffering the rigor of confinement in close custody, at this unhealthy season of the year (August 1813,) at a military camp, and under military power. He is a natural born citizen, residing in the state. He has a numerous family dependent upon him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only an aggravation of the oppression of confinement. (There was an affidavit that, General Lewis had expressed an opinion, that a court-martial was the proper tribunal to try Stacey.) It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of these means is this writ of habeas corpus, which has justly been esteemed the glory of the English law; and the parliament of England, as well as their courts of justice, have, on several occasions, and for the period, at least, of the two last centuries, shown the utmost solicitude, not only that the writ when called for should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate in promptly enforcing a due return to the writ, when we recollect, that in this country the law knows no superior, and that in England, their courts have taught us, by a series of instructive examples, to exact the strictest obedience, to whatever extent the persons to whom the writ is directed may be clothed with power, or exalted in rank.
‘If ever a case called for the most prompt interposition of the court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding him in the closest confinement, and contemning the civil authority of the state. The parties are also at so great a distance, that no rule to show cause could be made returnable at this term, Sic.’ The court ordered that an attachment be issued, against General Lewis, unless he obeyed the habeas corpus, or discharged Stacey. See 10 Johns. R. 333.
It has been laid down generally, that no one can in any case, controvert the return to a habeas corpus, or suggest any thing contrary to it. It is held, that if a false return is made, suggesting a sufficient cause of detention, the court will not inquire into it, but will remand the prisoner, though he be prepared to show that it is false. It is held further, that he can have no other redress, but by an action on the case for a false return, or an action of trespass for the false imprisonment. See 11 Co. 99 b. Bagg’s case. Godb. 198. .
There are some opinions however to the contrary; See Bac. Abr. Habeas Corpus, (C.); and certainly, the writ of habeas corpus must be deprived of much of its utility and importance, if the person to whom it is directed, can avoid delivering up the prisoner, by a false return of a good cause. To render this process dependent upon the aid of the auxiliary actions of case or trespass, is to render it comparatively ineffectual.
During the last war, a citizen of Maryland was seized by a military recruiting party, under pretence of enlistment. He applied for a habeas corpus, and the officer returned that the enlistment had been regularly and fairly made. The citizen bad abundance of testimony to prove, that there had been an attempt to impose the bounty on him, which he immediately spurned at, and that he had done no act whatever, by which he could be considered as having enlisted. But the judge decided that he could receive no evidence to contradict the return, &c. A more flagrant case could not well be imagined. The consequence was, that the legislature of that state immediately passed an act declaring the law in relation to this subject, authorizing the complainant to controvert the truth of the return. See 5 Hall’s Law Jour. 456.
Though the law was very properly declared by the legislature of Maryland, for the satisfaction of doubts, it may well be questioned whether the decision of the judge, in the case referred to, was correct. The reason why returns in general cannot be contradicted is, because they are usually made by proper officers, appointed by the public. But the return of a private citizen to a habeas corpus, directed to him, is entitled to no such respect, and a recruiting officer in this particular is entitled to no higher consideration than any other citizen! None but officer’s entrusted by lawyith the custody of persons, saeh as gaolers, sheriffs, &c. Stc. can come within the reason of the rule, which does not permit returns to be contradicted. Suppose a man should have the person of a female in his custody, and a habeas corpus being directed to him, returns that she is his wife, or his daughter, or his ward, will the court suffer her to remain in his custody when she may be able to prove the return false. Suppose a man-stealer to have the person of another in his custody, and on a habeas corpus, returns that the prisoner is his slave, will the court permit him to carry off his victim, without hearing the evidence which he may offer to prove the return to be false? For, color alone is no safe criterion; since many blacks are free; and there are some slaves, especially children, whose complexions cannot be distinguished from that of the whites.
To make the writ of habeas corpus an effectual remedy for illegal imprisonment, the prisoner ought to be permitted to controvert the truth of the return, in all cases where the person is not a civil officer, entrusted officially with the custody of prisoners. This, on principle, is believed to be the true law on the subject. In all other cases, no other excuse for not bringing in the body ought ever to be received, but, either, that the prisoner could not be removed on account of sickness, or, that he was not then and had not been in the custody of the respondent, or, that he had made his escape, &c.
If a person should be committed for a contempt, by a court of competent jurisdiction, the liberty of the citizen would seem to require, that the matter or act constituting the contempt, should be returned, in order that there might appear to be sufficient cause for the imprisonment, of which the court having authority to issue the habeas corpus, might judge. But, as every magistrate may by law commit for a contempt founded on sufficient cause, the matter of the contempt ought to appear both in the commitment and on the retnrn to the habeas corpus; otherwise, under a loose charge of contempt without further specification, any citizen may be imprisoned without remedy. And therefore, if either house of congress, or of either of the state legislatures, should commit for a contempt generally, without specifying the particulars of the contempt, a regard for the liberty of the citizens, requires, that the supreme court of the United States, or the supreme court of the particular state, according to the circumstances of the case, should discharge the prisoner on account of the looseness and generality of the return. But, in case of such commitment, if, the particulars of the contempt were specified, and the court should be of opinion that the cause of detention was not sufficient, being grounded on a mere usurpation of power, in violation df the constitution of the United States, or, of that of the particular state, according to circumstances, they ought, without hesitation, to discharge the prisoner. This doctrine seems to be supported by the remarks of Ld. Ellenborough in the case of Burdett v. Abbott, so far as to discharge a prisoner where an insufficient cause of commitment is assigned in the warrant, but is at variance with it in other respects. But, as imprisonment is only justifiable on a warrant expressing a certain sufficient cause, and as it does not consist with the nature of our constitutions and laws, that any body of men, though in authority, should have the power to imprison the citizens arbitrarily, by the simple expedient of assigning any cause in such general terms, that no other tribunal can determine whether it is or is not sufficient, it is presumed that the qualification of Ld. Ellenborough’s doctrine, would not be sustained here. In delivering his opinion in the case referred to, his lordship remarks: ‘If a commitment appeared to be for a contempt of the house of commons generally, I would neither in the case of that court, nor of any other of the superior courts, inquire further; but, if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment, palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to happen) we must look upon it and act upon it as justice may require, from whatever court it may profess to have proceeded.’ See 14 East, 1. But the subject is submitted to the intelligent reader.
The writ of habeas corpus cannot be suspended except by congress, and by them, in cases of rebellion or invasion only, when the public safety may require it. When, therefore, General Jackson, in Dec. 1814, undertook to suspend the privilege of habeas corpus, and proclaim martial law, he betrayed a great misapprehension of the extent of his own authority. It is to this cause, it is believed, and not to any intention of usurping power not delegated, that these measures should be ascribed. But, as he afterwards enforced his illegal proclamation, by means of the armed force under his command, it shows the great inconvenience of entrusting the control of a large military force, to persons who are unwilling to acknowledge, or unable to distinguish the proper limits of their own authority. For this invasion of the rights of the citizens he was fined $1000. See 3 Martin’s Reports, 530.
It may be remarked, in conclusion, that in all cases, where a person is brought up on a writ of habeas corpus, and a sufficient cause of commitment is returned, if he is charged with any crime which is not capital, he may be bailed. But, if he is charged with a capital offence, he will be remanded.
(fn1) The defence was afterwards conducted by Andrew Hamilton, an eminent barrister of Philadelphia, and a Mr. Chambers. The argument of Mr. Hamilton displays great abilities and learning, as well as eloquence, and is particularly deserving of observation for his setting the rights of juries, in cases of libel, on the same basis which was adopted by Mr. Erskine half a century afterwards, in his argument on the trial of the Dean of St. Asaph, and which is now the settled law of the land, in England and in this country. He also most strenuously advocated the doctrine of giving the truth, in evidence, &c. The peroration of his argument is here inserted, partly for its manly sentiments, and partly as a specimen of the eloquence of the Philadelphia Bar, a century ago.
‘Power may justly be compared to a great river; while kept within its due bounds, it is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men who value freedom, use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust, and boundless ambition, the blood of the best men that ever lived.
‘I hope to be pardoned, Sir, for my zeal on this occasion; it is an old and wise caution, ‘ that when our neighbor’s house is on fire, we ought to take care of our own.’ For though, blessed be God, I live in a government where liberty is well understood and freely enjoyed, yet experience has shown us all, (I am sure it has to me,) that a bad precedent in one government, is soon set up for an authority in another, and therefore 1 cannot but think it mine and every honest man’s duty, that, while we pay all due obedience to men in authority, we ought at the same time to be on our guard against power, whenever we apprehend that it may affect ourselves or our fellow subjects.
‘I am truly very unequal to such an undertaking, on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land, where my service could be of any use, in assisting to quench the flame of prosecutions upon informations, set on foot by the government, to deprive the people of the right of remonstrating, and complaining too of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration, provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and persecutions. I wish I could say there were no instances. But, to conclude, the question before the court, and you, gentlemen of the jury, is not of a small nor private concern. It is not the cause of a poor printer, nor of New York alone, which you are now trying. No: it may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery, will bless and honor you, as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that, to which nature and the laws of our country have given us a right—the liberty, both of exposing and opposing arbitrary power, in these parts of the world at least, by speaking and writing truth.’
The jury brought in a verdict of not guilty; and Mr. Zenger was discharged from his imprisonment.
Continued in PART III: Of The Policy Which Ought To Be Pursued By The General Government In Relation To Agriculture, Manufactures, And Commerce.See the other parts of this series: RIGHTS OF AMERICAN CITIZENS: General Rights; Division One RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers RIGHTS OF AMERICAN CITIZENS: The Rights of Juries RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses RIGHTS OF AMERICAN CITIZENS: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments. RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to agriculture RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to commerce