15 Mich. 417 | Mich. | 1867
The question of jurisdiction presented by this motion is, whether, assuming that Taff, in May, 1866, caused the infant Samuel W. Jackson to be removed from this state, with the design of keeping him from the custody of his guardians, and has since that time been instrumental in having him detained beyond the state, this court has authority by the writ, of habeas corpus to compel the child, who has been all this time in other territory, to be brought back to Michigan.
If the court has such authority, and if the case set up by the relators should be made out, there can be no difference of opinion as to the propriety of its exercise. The removal is charged to have been made at a time when a decision of this court was to be given, which might, and when it was made actually did, settle the rights of the testamentary guardians to have the child under their control. If the allegations should be sustained, the respondent has been concerned in a very daring violation of law, for which he should be held to a strict account.
The gravity of the charges, and the danger which must arise if such conduct can not be reached, impose upon us the duty of considering with more than common care the question of jurisdiction, where action and refusal to act involve equally serious results.
The habeas corpus act of this state differs from the original English statute, in not being confined to persons held under charges of crime. Except in certain specified cases, in which the interference would be manifestly improper, the statute allows the writ, where the imprisonment or detention is “ under any pretence whatever." But it is also confined in its operation by the same section to persons detained “ within this state." — Comp. L. §5210.
It is also easily seen from the statute that the attention of the legislature was directly drawn to cases like the present, where it may be supposed a design exists to evade the law. Section 5252 makes it a criminal misdemeanor to transfer the custody or change the place of confinement, with intent to elude service or avoid the effect of a writ. Section 5255 provides that when it is made to appear that a person is likely to be carried out of the state, a special warrant may issue to take such person, and, if the conduct charged is criminal, to arrest the custodian. But if the case is made
The statute, then, furnishes no means for reaching a case like the present; and, according to the usual rules of construction, it is fair to presume the omission was not accidental, but' was based upon some adequate reason. And it can not be supposed that the possible existence of some common law application of the writ furnished any such reason, inasmuch as the statute was framed expressly to improve upon the common law, which was alleged to be deficient from the very fact that, by not compelling an immediate return, it gave parties facilities for evading the writ. This is matter of history, and is expressed in the preamble of the English statute.
The territorial statutes are all modeled in their more important features after the act of 31, Charles N. and therefore leave much to the common law. Like that statute, however, they provide expressly for cases where prisoners are sent abroad, and, instead of furnishing means for reclaiming them, only provide actions and penalties for false imprisonment. The revised statutes of 1838 do not in terms confine the operation of the writ to persons detained within the. State, but the effect is the same, as the writ is in all cases required to be directed to an officer, who is thereby ordered to take and bring before the court the body of the person detained. Of course, the officer must act within his bailiwick, and' the place of the imprisonment is expressly required to be set out in the application. This statute also provides in express terms for evasive transfers and removals, but only applies a specific penalty against the wrong-doer, in favor of the party ■ aggrieved. — P. S. 1838, Part 3, Tit. 4, Gh. 3.
Any argument derived from a legislative interpretation of the law in this country would usually deserve
It will be proper, then, to consider the Act of 31, Charles II. in. connection with the authorities, to see whether, as far as it extends, it leaves out any of the safeguards of the common law. The only point on which we need now examine it, is in respect to the persons and places subject to its operation. This is provided for by section 11, which is in these words: “And be it declared and enacted by the authority aforesaid, that a habeas corpus, according to the true intent and meaning of this act, may be directed and run into any County Palatine, the Cinque Ports,' or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the„ island of Jersey or Guernsey; any laws or usages to the contrary notwithstanding.” The 12th section provides
The islands of Jersey and Guernsey are the only places mentioned in both sections of this act, and they are the only two places concerning which it was doubted whether they formed a part of the realm of England. They originally formed a part of the Duchy of Normandy, and subsequently became a part of the English dominions, but it was said, in Calvin's case, that they were not parcel of the realm. 7 Co. 21 A. And Lord Coke says the King’s writ does not run there. — 4 Inst. 236. Selden, on the other hand, says they were a part of the realm. — Seld. Mar. Clau. 4, 1351, cited Comyn's Dig. “ navigation," F. 3. This question came up again in 1855, before the Court of Exchequer, in a revenue case, where Baron Alderson uses this language: “ When Calais was under the dominion of the English crown, it was part of the realm of England. Children born there' were Englishmen, and could inherit property in England; and a writ of error to the King’s Bench would lie on a judgment given there. — 4 Inst. c. 68. It is not so with the Channel Islands.” — 32 L. & Eq. 539 (Shepherd v. Hills). It has been generally conceded that the writ of habeas carpus
It is universally admitted that there are no precedents for issuing the writ to any of the places mentioned in the twelfth section but Jersey, and that it can in no case
The question then arises, whether the running of this writ is determined by the situation of the person to be relieved, or by that of the persons concerned in the unlawful detention. Among all the precedents, ancient and modern, wliich I have been able to find, there is none which does not show the question, as to whether the writ would run into the privileged places, to have arisen concerning an imprisonment there. No point was ever made upon the service of the writ upon the wrong-doer outside of the place of imprisonment, as making any difference. And there can be no doubt that the legal purpose of the writ is to relieve from the illegal restraint, on the ground of its illegality, and on no other ground/ It is not a private remedy in favor of the parent or guardian, or even, except indirectly, of the prisoner himself. It is a prerogative writ, issued on behalf of the King, who is entitled to “have an account why any of his subjects are imprisoned, and therefore no answer will satisfy the writ, to return, the cause with paratum habeo corpus,” etc. — Bourne’s' Case, supra. The exigency of the writ is to bring up the body, and there is no instance in the law where a writ requires any act to be done beyond the jurisdiction which issues it. If there are attachments and penalties, they all refer to some refusal or neglect to do
While in such cases the guardians are unquestionably entitled to be favored, unless circumstances show convincing reasons to the contrary, yet they can not be considered as parties aggrieved, nor as entitled to control the proceedings on the writ. The infant is the subject of the false imprisonment, and his detention is the grievance which concerns the public, and it can not concern any commonwealth but that where he is restrained. The remedy is quasi criminal, and analogous to the proceedings of conservators of the peace. The' American cases take the same view of the discretion to be exercised in* determining the custody of infants where the detention iunlawful. — People, v. Mercein, 8 Paige, 47 ; Com. v. Harison, 11 Mass. 63; Com. v. Hamilton, 6 Id. 273; Com. v. Hammond, 10 Pick. 274; Com. v. Addicks, 5 Binn. 520; Com. v. Robinson, 1 S. & R. 353; State v. Fraser, Dudley, Ga. 42.
This question of locality was referred to as furnishing the ground of jurisdiction, by the Supreme Court of the United States, in 21 How. 523, in the case of Ableman v. Booth, which was the foundation of the ruling of a majority of this court in Spangler's case. —11 Mich. R.
I have already alluded to the fact that, in the English acts, provision is made for vindicating with great severity cases of removal of prisoners heyond the reach of habeas corpus, but none is devised for securing their return. The unrestrained power of Parliament could very easily have made the writ run anywhere into British possessions, except into Scotland, and could have provided compulsory means for putting the offender under such terms as would have made it desirable for him to make efforts to produce the persons restrained of liberty. But the form of the writ does not adapt it to any such indirect purpose, and it was contrary to the common law to disregard the locality of crime as an element of jurisdiction; and every false imprisonment was an indictable misdemeanor, punishable where committed.
But no such provision was necessary to obtain redress for the person aggrieved. The writ de homine replegiando was the remedy secured to the party for obtaining his liberty, in those cases where the remedy by habeas corpus was inapplicable. We have already seen that it has been restored in Massachusetts as a supplement to that. Under this writ, which was directed to the sheriff of the county where the party was taken or held, if the officer return that the defendant has eloigned the body, the plaintiff may have a capias' in withernam, to take the defendant’s body and hold it until he make return of the plaintiff’s body. In such case, as in case of habeas corpus, the privilege of peerage can not exempt the defendant from arrest. — Fitzh. N. B. 66, 68. And the writ runs, as it would seem, into privileged places, not subject to the ordinary writs — as the Cinque Ports. — Fitzh. N. B. 67. The writ is not bailable, and bail can only be allowed by the court. The proceedings in Besigny’s case— T. Raymond, 474, (also reported more at length in Showers’
The remedy by habeas corpus is so much more satisfactory, that it is not to be wondered at that the other writ should rarely be resorted to. There are no common law countries where liberty is not protected. It can not-often happen that the favorite remedy will not prove adequate. But- this will not justify us in substituting it where, by law, it is not appropriate. Under a government of law it would not become the courts to set the example of usurpation. They are not in fault for affording no relief, when the power to grant it has been withheld. It may be worthy of consideration, whether the case does not come within the jurisdiction of equity. But it would be out of place now to make any investigation on that point. If the writ of habeas corpus does not lie, we are precluded from any further inquiry.
I have arrived at these conclusions with regret. A criminal complaint does not afford the redress needed. It is true that the obstinacy of a party might prevent any means of obtaining an infant who has been concealed elsewhere. But coercive measures would in most cases be effectual, and I should be glad to believe we could inquire into the merits of this matter. But for the reasons given, I think the writ must be quashed.
Martin Ch. J. concurred.
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. The subject of the petition was a minor of tender years, incapable of judging and acting for himself, whose custody was sought by his legal guardians, and who, according to the petition, had been removed from this state where his residence was, apparently to avoid the process of this court, by a person who was a party to litigation before us respecting the guardianship, and who was still within the jurisdiction. The writ, if issued, would not be for the purpose of releasing the child from custody, but to subject him to the custody of those who had been adjudged by our decision to be lawfully entitled to it; but the case stood upon no different ground than if a citizen sui juris had been kidnapped, and removed, or enticed beyond the limits of the state, and was now confined abroad by a person resident here, and within reach of our process. The question nakedly presented, therefore, was whether we had any jurisdiction to relieve from unlawful imprisonment a person confined beyond the limits of the state, but who was one of our citizens, removed wrongfully to evade process, and for the purpose of the unlawful confinement, and whose jailer was here, and might be compelled to open his prison doors by our order, if we have power to make one. It appeared to me at the outset, that we were able to give the proper relief; and examination and reflection have only tended to confirm my first impressions.
It would be strange indeed, if, at this late day, after the eulogiums of six centuries and a half have been expended upon Magna Charta,'and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that “Magna Charta was such a fellow that he will have no
The argument in favor of this position at the bar seemed to be based mainly on two propositions: First, That the act of removing the child in the manner charged was a criminal offense, and the person guilty thereof could only be proceeded against for the crime; and, second, that the statutory provisions respecting the writ are applicable by their express terms only to the case of confinements within the state.
The first proposition 'certainly has no force. It would be a monstrous anomaly in the law if to an application by one unlawfully confined, to be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure. If this were so, personal liberty would be better protected by at once repealing all laws which provide such criminal punishment;
If this were an attempt to compel a respondent to answer to facts set forth in a petition which amounted to a criminal offense by him, and he should claim exemption from answer on the ground that it might tend to criminate him, considerations would be presented different from any now .before us. Neither at the outset nor since has the respondent claimed his privilege; and he has now answered, as he claims, fully to all the facts. The sole question, then, on this branch of the case, is, whether the fact that respondent may be liable criminally for what he has done precludes our compelling the delivery of the child to his guardians on this writ. Clearly it does not. This writ is given as a speedy and effectual remedy in the cases to which it is applicable; and its object is, not the punishment of the respondent, but to relieve the petitioner from unlawful custody. Usually it does not go further. Whatever may be the rights or liabilities of ,the parties beyond those which relate to the custody, they are left untouched
The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was'never the case in England that the Court of King’s Bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. The writ is so ancient that its origin is lost in obscurity, and the Habeas Corpus Act of 31, Car. II., introduced no new principle. Hallam Const. Hist. ch. 13; Beeching's case, 4 B. & C. 136; 2 Kent, 26 — marg. Indeed that statute was aimed mainly at judicial and ministerial officers — 1 Chit. Cr. L. 131; Kirk's case, 5 Mod. 454 — and if provided heavy penalties for failure to observe and perform those duties which the common law, as declared in Magna Charta, enjoined upon them. The act itself was much less broad than the remedy had been before; being confined in its scope to imprisonment for criminal or supposed criminal matters — Case of Lord Mayor of London, 3 Wils. 198; Wilson's case, 7 Q. B. 984 — and the contest in Parliament nearly a century later, over the attempt to extend its provisions to other cases, was defeated by the memorable opposition of Lord Mansfield, expressly on the ground that it was unnecessary, and that the remedy at the common law was ample. — Hurd on Hab. Corp. 102; Life of Mansfield by Lord Campbell, 2 Lives of Chief Justices, chap. 35; 15 Hansard's Debates, 897 et seq.
The English statute authorized proceedings by warrant to take the body of a party in danger of being removed from the realm; and a like process is authorized by our law. It is of utmost importance, because, where the party restrained of his liberty is removed, the restraining power, except as that may rest in the executive in some cases, is almost invariably removed also. And there was abundant reason for the penal provisions in the English statute against imprisonments beyond the seas, without seeking it in the absence of this specific remedy at home. Those imprisonments were in derogation of ■ common law right, and opposed to the traditional instincts of the English
I have spoken of the remedy in the King’s Bench, because it is to that our jurisdiction must be likened. It would appear that the jurisdiction of chancery within the realm was also general before the Habeas Corpus Act— 2 Inst. 55, a; 4 Inst. 290 — and though it was formerly held that the Common Pleas and Court of Exchequer had jurisdiction only for privileged persons, the contrary was decided in the important case of JBushell, who was imprisoned for his verdict acquitting Penn — Vaughn's Rep. 135 — and this case was followed in Woods Case, 3 Wils. 112. When the constitution gave this court jurisdiction of the writ, I think it conferred the same full powers upon the court, as representing the sovereignty of the people, which the court of King’s Bench possessed as representing the Crown of England. Our jurisdiction does not depend upon
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter.
What I say on this subject is carefully restricted to the case of a citizen of our own state unlawfully held in custody, elsewhere by another person, who is himself within
It remains to be seen how the case is affected by the subsequent pleadings.
The motion to dismiss, when renewed, was in the nature of a demurrer to the traverse of respondent’s answer. The answer denied, with considerable particularity, the principal facts set out in the petition; averred the child to be in Canada, in the custody of respondent’s wife, who refused to submit to respondent’s control, and declared her purpose of remaining abroad, with a view to retaining the child’s custody. The answer also averred that on application to a court of competent jurisdiction in Canada, the wife had been appointed the child’s guardian, and now held and controlled it under that appointment; and that the child was in no degree under the power, custody or control of the respondent. This last averment of the answer, as well as the respondent’s denial
1 am constrained to say that, in my opinion, the traverse does not cover the ground of the answer. It is not denied that the wife has procured herself to be appointed guardian of the child abroad, and that she now assumes to hold it under that appointment. This fact is an element in the case which cannot be overlooked, and which quite distinguishes it from the simple case of a detention by a person here by means of an agent abroad. Leaving out of view all those delicate questions which might arise as to compelling the delivery up of the child by the wife against her will, through the coercion of the husband, and coming directly to the point which alone we must consider now, whether the coercion can be applied when it already appears that the wife is acting as guardian under an appointment which we must assume to be good in form, and recognized there as valid, I am unable to see upon what ground we could base our justification in issuing compulsory process against the husband.
The fact that he originally connived at and assisted in removing the child, is not important now, unless it is still within his control. This is not the proper proceeding in which to punish him for that act, except by way of compelling him to deliver the child to the proper custody, if he now has the power to do so. If the child is held in a foreign jurisdiction by one appointed his guardian there, the respondent has legally no such power as is claimed, even though the person having the custody may have been his agent, and, as such, procured the appointment. The agency does not enter into the guardianship. The law there will know nothing of such an agency, and will refuse to recognize it. The custody has ceased to be that of the individual, and has become that of the agent of the law. That law .is the foreign law; and we must come directly in conflict with it, if we exercise jurisdiction on
It is quite probable that the appointment in Canada was made in ignorance of the real facts of the case. I can not doubt if these were fully presented, the court there would revoke its action, and cause the child to be delivered to the testamentary guardians. In my opinion, that court is the tribunal to appeal to under the facts disclosed by the pleadings.
Note. — On page 427, Gth line from the bottom, after the word “-writ,” insert the word but.