6 Johns. 337 | N.Y. Sup. Ct. | 1810
The question for the determination of this court is, whether a writ of error will lie on the proceedings had before the supreme court, on the habeas corpus, allowed by that court.
The writ of habeas corpus is the most usual and proper remedy to be relieved against a wrongful imprisonment ; and in order to prevent vexatious delay,' it is, by statute, made the duty of the chancellor, or justice of the supreme court, to whom application shall be made, to allow it, and examine into the cause of commitment.
In this case, Mr. Tates, after having been twice discharged by a justice of the supreme court,, was taken a third time, by an order out of the court of chancery, and, on application, was, by habeas corpus, brought before the supreme court, who adjudged the commitment good
It has been urged, that this is not a judgment, and therefore error will not lie ; that the habeas corpus is a writ of privilege, merely for the enlargement of the prisoner, without touching his case; that as in a procedendo, it does not touch the merits; and that the same reasoning applies here as in the case of a mandamus.
I do not think the words ideo consideratum est, are indispensable, to constitute the only judgment subjectto error; it is not used in a fine, nor is it necessary in outlawry.
Lord Coke says, without a judgment, or award in nature of a judgment, error will not lie. I believe it is only necessary to examine these proceedings, to determine whether it is an award in the nature of a judgment It is sufficiently extensive and final; he is remitted in the same state in which he was when the habeas corpus issued; and, in my view, it partakes so much of the nature of a judgment, that it may well be called so, and deemed subject to error.
The nature of a procedendo, and the province of a mandamus, differ materially from the writ of habeas corpus; nor do I think the same reasoning applicable on a question of property or interest, which substantial justice would legally enforce, as on a question of personal liberty, and which ought, at all times, to be extended to the citizen, more especially by a court of the last resort, if it can be done without violating established principles of law.
The supreme court proceeded to examine into the cause of commitment, and by its adjudication has confirmed the proceedings in the court of chancery; and the party, conceiving himself aggrieved, now seeks his remedy in this court, grounded on the proceedings laid before the court belowj and unless sufficient appears on
The peculiar situation in which these proceedings have placed the chancellor, and the justices of the supreme court, as members of this court, has been urged as evidence of the impropriety of sustaining the writ, I cannot discover the force of this argument, or how the existence of such a difficulty can possibly affect the remedy now sought .for, against an act of a court, whose adjudication is subject to the revision of this court.
It is also said, supposing Mr. Justice Spencer had refused to bail, qr discharge the party, who would then have returned the proceedings to this court ? Such return, certainly, could not be enforced, nor would it be necessary, another remedy being open to the party. If dissatisfied with the opinion of the judge in vacation, he might renew his application, in term time; and if he supposed himself aggrieved by the subsequent adjudication of the court, he might, as in this instance, clan*
In the case of The Queen v. Paty et al. ten of the judges were of opinion, that the queen could not refuse to allow a writ of error, but that it was grantable, ex debito justitim. Two of the judges held, that the subject could not, of right, demand it in any criminal case, then it was a doubt, whether any writ of error lay upon a habeas corpus. The agitation of the house of lords, occasioned by the extensive claim of privilege on the part of the commons in this case, and the subsequent conduct of the queen to prevent a decision, is, I think, strong presumptive evidence of the favourable opinion of the house of lords, as to entertaining this writ.
In short, it has never been so determined, as to remove the doubt which then existed on the subject; and it now remains for this court to settle the law; and in a case like the present, where it is admitted, that the prisoner is without remedy, if error cannot be sustained, I have no hesitation in giving it as my opinion, that the writ ought hot to be quashed, in order to give full effect to the revising power vested in this court by the constitution, which, in this instance, will of course be confined to the record of the proceedings sent here by the supreme court.
declared, in substance, that upon a full and deliberate examination of the question, he was clearly of opinion, that the writ of error would not lie in this case, and that the writ ought, therefore, to be quashed.
The question now under consideration °f high importance. . It has been correctly said, in the" progress of the argument, that there never has been a decision in England upon the point; there are dicta to be found, but they proceed from judges who had not c0gnjsance 0f the question, and are merely thrown out by way of illustration, on discussions of other points of law. Such dicta have never been considered as authoritative ; and when quoted by counsel, to subserve their purposes, have ever been treated as inconclusive. Having premised thus much, I proceed to show, that whenever it.has been said by the judges, that a writ of error will not lie upon a habeas corpus, these have been obiter dicta.
The case of The City of London, (8 Coke, 7 fac. I.) was thus; .one Wagoner was imprisoned, upon a conviction, for a breach of one of the by-laws of the city. .He sued out.his habeas corpus; a special and very long return was made in justification of the imprisonment; and upon the objection, by the prisoner’s counsel, that the return consisted much in recital, it was answered .and resolved, that this was not a demurrer in law, but a return to a writ of privilege, upon which no issue can be taken or demurrer joined ; and that, upon the award of .the court, no writ of error would lie, the return being to inform the court of the truth of the matter. Upon this - case, it is observable, that it was before the habeas corpus .act, which passed in 31 Car. II. The question was no‘t, and could not he under .the judgment of the court, whether a writ of error lay or not. The next case is that of The King v. The Dean and Chapter of Trinity Chapel, in Dublin. (8 Mod. 28. Hil. 8 Geo. I.) That case is to be found in several other books. As reported in Mod. _it is this : A writ of error was brought from the king’s bench in Ireland, to the king’s bench in England, on the • awarding of a peremptory mandamus, and the chief point ivas, whether a writ of error would lie upon'a peremptory
This case, then, comes back, to be considered on principle, without the aid of any adjudged case. The objections urged against a writ of error are several:
1. That no definitive judgment has been given, and the form of the entry is such, as shows that the matter has not been adjudged, there being no ideo consideratum est.
2. That a habeas corpus is a mere writ of privilege, for the enlargement of the prisoner, and does not touch the merits of his case.
3. That this court cannot, if it takes cognisance of the case, afford any remedy to the prisoner.
4. That the writ of error, in this case, has not brought before the court the whole case ; and that as the conviction took place in the court of chancery, the only remedy would have been by appeal; and that the grievance complained of, having originated fi-om chancery, the provisions of the constitution are defeated in permitting a writ of error to lie, by which the judges of the supreme court will be precluded from sitting as judges.
As to the last point, it will be recollected, that on this motion, the merits of the case can be no further considered, than are necessary to raise the question. It is, therefore, not now to be examined, whether Tates was committed for a contempt of the court of chancery, or for a criminal act in violating a public statute, for which he was alone amenable in courts having criminal jurist diction, nor whether he was liable to be reimprisoned,' after his enlargement on habeas corpus. It is as little to the purpose, to examine into the constitutional organization of this court, by reasoning against its jurisdiction, in consequence of provisions in the constitution, which exclude the justices of the supreme court, from voting hi
The form of the judgment, in this case, is,i( whereupon, all and singular the premises aforesaid, being seen and fully examined and understood, by the justices aforesaid, it seemeth to the justices aforesaid here, that the aforesaid cauée of commitment of the said John V. N. Tates, to the custody of the sheriff of the city and county of Albany, in the return of the said sheriff above specified, is good and sufficient in law, to detain the said John V. ZV". Tates in the custody aforesaid.” There is no ideo consideratum,, and a reversal of the decision of the supreme court, would not entitle the prisoner to any thing in the personalty.
That the record presents a determination of the questions of law arising from the sheriff’s return, will hardly be denied by any one. The language of the record imports an ultimate and final decision by the supreme court against the prisoner. It is a decision too of the highest importance to him, because it subjects him to imprisonment under the order of the court of chancery, which has no other limitation in point of time than the mere pleasure of that court. In a case thus circumstanced, to abridge the citizen of his right to appeal to a court superior to the one which has virtually sentenced him to imprisonment, by declaring that the cause of his commitment by the court of chancery is good and sufficient in law, to detain him, and by remanding him to the custody of the sheriff, there to remain in the same state in which he was at the time of issuing the aforesaid writ of habeas corpus, would, in my view, require very strong and cogent reasons.
The 7th section of the act organizing this court, (l Rev. Laws. 184.) declares, that all errors happening
In the present case, a record has been made under the directions of the justices of the supreme court, agreeably, in most respects, to the form settled in the king’s bench, in the case, of The Queen v. Paty and others, except that the entry in that case is, that the cognisance of the cause of the caption and detention of Paty, did not belong to the court of the said lady the queen, &c. whilst in the record here, it is, that the cause of the commitment is good and sufficient in law, &c. In the case of Paty the court denied itself jurisdiction; but in this case, the supreme court assumed a jurisdiction to judge, and did adjudge the commitment good and legal.
In the case of The Queen v. Paty, Lord Holt says, and he is not contradicted by the- other judges, when considering the return of the habeas corpus, “ And we may as well determine it upon the return of the habeas corpus, (the privileges of the commons,) for the defendants are here in a proper course of law, and the matter appears to us upon record, as well this way as if it were pleaded to an action.”
The question recurs, is it essential that the record should
In the case of Ascue v. Fitzjambe, (Cro. Eliz. 233. 349. Fitz. N. B. 304.) upon a statute-merchant, the court held clearly that error lay where the statute was gpod, but the execution is erroneously sued out upon it. A statute-merchant is where a man is bound before a mayor or bailiff of a corporate town, who has power to take such bonds or recognisances, to pay a certain sum of money, at a fixed day; if there be default in payment, then the person, in whose favour it is made, comes before the officer, taking the statute, and prays him to certify it under his seal, upon which there issues a writ to execute the statute. I have given this succinct history of the proceedings on a statute-merchant, for the purpose of showing, that there is no judgment of any court upon it; and yet we see that a writ of error lies on it. It is very certain also, that a writ of error lies on a fine, on which no judgment is pronounced, the whole process depending on the acts of the parties, it being a more solemn form of conveying real estates. Our statute relative to. fines limits the time within which writs of error shall be brought to reverse them; and declares, that for certain defects there-: in they shall not be reversed: and in the case of fines the statute does not give, but only recognises, the law, that writs of error lie on them.
In Metcalfe's case (11 Coke, 38.) it was decided that a writ of error would not lie on a judgment quod computet, because it was not a final decision ; but in the same case, the reporter, Lord Coke, instructs the reader, that there are exceptions to the rule, that no writ of error lies until
These cases, and it is believed others could be added to them, evince that there is no such rule existing, as that a writ of error will lie in cases only where the judgment is technically, ideo consideratum est.
As to the second point. It is incorrect, at this day, to say, that a habeas corpus is a writ of privilege. Since the 31 Car. II. it has been considered a writ of right, demandable, ex debito justifies, in the cases provided ; and this right is secured by various penalties on those authorized to allow, and on those required to execute, the writ. It is, in truth, the birth-right of the citizen; and it appears to me extraordinary, to have it contended, that the decision of the supreme court does not touch the merits of the prisoner’s case. If he cannot obtain the benefit of this Writ from that court, he can get it no where; for though there be the physical power on the part of a judge of that court, in vacation, to allow the writ and liberate the prisoner even now; yet such a procedure would be incorrect and censurable. The decision of the supreme court has settled the law of that case; and if this court cannot review the question, it must remain the law of every similar case.
But it has been insisted, that there is an analogy between the adjudication on a writ of habeas corpus, and the issuing a peremptory mandamus ; and it having been settled in the house of lords, in England, in the case of
The statute to which I have referred is very broad and extensive. This court have a revisionary power .over all errors happening in the supreme court.
In this case, there is a record of a proceeding in that court; and there is, substantially, a judgment on that record, or, in the language of Coke, an award in nature of a judgment.
The ideo consideratum est, on a record, is not the test by which to determine whether error lies or not, as must be manifest from the cases which have been cited. The question is altogether unshackled by decisions in the English courts. Not one has been quoted, and none
Should this court take cognisance of the question, by entertaining a writ of error, there can be no difficulty in the subsequent stage of the cause. Should they reverse the judgment of the supreme court, by reversing that judgment, they will declare the law of the case ; and the prisoner will be in the situation of a person whose outlawry is reversed, when the forfeiture of goods has not taken place; he will be restored to his right under the habeas corpus act, as the outlaw is to his law, and his ability to sue. On remitting this record back to the supreme court, with a reversal of their judgment, that court will have an undoubted right, and it will become their indispensable duty, to order the prisoner to be brought before them, and to discharge him. The prisoner is now in custody, under the sentence of the supreme court, remitting him to his former imprisonment. By reversing that judgment, the prisoner is put in the same situation he was in before he was remitted. The court, also, are to begin again from that point. A judgment of reversal would, necessarily, therefore, operate effectually, by virtually giving to the supreme court directions and authority to proceed again under the habeas corpus to be remitted. But, at all events, by reversing the judgment, the law of the case becomes settled, and no judge of the supreme court would hesitate in discharging the prisoner.
It has been said, and it may again be urged, that the want of a precedent of a writ of error on a habeas corpus, is evidence that error will not lie. I cannot subscribe to this doctrine. In an action at common law, it can be no
My opinion is, that this court ought to take cognisance of the cause by upholding the writ of error; and that a refusal to do so would be a denial of right to the individual, and a surrender of the clear, just, and necessary prerogatives of this high tribunal.
The prisoner having been committed by the court of chancery, to the custody of the sheriff of Albany, for mal-practice and contempt, was brought into the supreme court, upon a habeas corpus ; and after due examination there, of the cause of commitment, he was ordered to be remitted to the custody of the sheriff, there to remain, in the same state in -which he was at the time of issuing the writ of habeas corpus. Upon this a writ of error is brought, returnable in this court; and the specific and only question now under consideration is, whether a writ of error will lie in this case.
By the constitution, (article 32.) this court is to consist of the president of the senate, for the time being, and the senators, chancellor, and judges of the supreme court; and it is declared, that if the cause to be deter-, mined shall be brought up by writ of error, on a question of law, on a judgment in the supreme court, the judges of the court shall assign the reasons of such their judgment, but shall not have a voice for its affirmance or reversal. Thus it will be seen that the judges are made constituent members of this court, and thereby necessarily acquire a right to vote in all cases, and upon all questions, except on the affirmance or reversal of their judgment. The particular question now before this court* never having been, in any shape, before the supreme court, it is impossible that the judgment of that court is to be affirmed or reversed, by the present decision. But it appears to me, that one of the rules of this court excludes the judges of the supreme court from a voice in the decision. It declares, that when a cause shall be brought into this court, by a writ of error* on the question of law in a judgment of the supreme court, the judges of such court may severally state their opinions, upon every mtítter, that may arise on such hearing, but shall not have a voice, in the decision of the court, on any question whatever, arising on the cause so brought into this court. Although the validity of this rule may well be questioned, as it abridges a constitutional right of the
It may, I believe, be assumed as an undeniable fact, that this is the first instance, in the history of our own, or English jurisprudence, in which a writ of error has been brought, upon the judgment or order of a court, upon a habeas corpus. This, although not conclusive, affords a very strong argument, that no such writ will lie. No such writ ever having been brought, it follows, as matter of course, that no direct adjudication on the subject is to be found. We have, however, the opinion of able and learned judges, in England; men who have been considered sages in the law, that a writ of error will not lie in such case, and I cannot find a contrary dictum, by any judge or elementary writer.
The case of The City of London, was upon a return, to a habeas corpus, and one objection was, that the matter of the return consisted much in recital, which ought to have been directly and certainly alleged. But the court overruled the objection; and the, reason assigned why it was not tenable, was, that the return is but to inform the court of the truth of the matter, and, therefore, such precise certainty is not required, as in pleading ; it is matter upon which no issue or demurrer can be taken j nor can any writ of error be brought, upon the award of the court thereon. (8 Coke, 253.) The opinion here expressed, is entitled to more respectful attention than a mere extrajudicial dictum of a single judge. It was the solemn resolution of the whole court. Because a writ of error would not lie, was
The case of The King v. The Dean and Chapter of Trinity Chapel, was on a writ of error from the king’s bench in England, to the king’s bench in Ireland: and the question was, whether a writ of error would lie on the award of a peremptory mandamus ,* and it was held that it would not, and the writ was accordingly quashed. The court, in giving judgment, say, it is against the nature of a writ of error, to lie on any judgment, but in cases where an issue may be joined and tried, or where judgment may be had upon a demurrer, and therefore it will not lie on a judgment for a procedendo, nor on the return.of a habeas corpus. A writ of error was, after-wards, brought, in the house of lords, and all the judges of England were of opinion, that a writ of error would not lie j (8 Mod. 29. 1 Stra. 543. S. C.) and affirmed the judgment of the king’s bench. As it is not pretended that any case is to be found, where a writ of error has been sustained upon any order made on the return of a habeas corpus, or even a dictum, in any shape countenancing such a proceeding, it is unnecessary further to examine, or refer to the opinions of English judges. The cases already noticed are amply sufficient to show, that not even a doubt is entertained in England on the subject. I say, not a doubt; because, had there been, our law books would have furnished some traces of a judicial decision on the very point. But it has been said, that this question is not to be tested by the powers, or proceedings of the house of peers in England, but by the constitution and statute of this state, constituting this court. It ought to be constantly kept in view, that the proceedings complained, of, by the prisoner, origina
Admitting, for the present, that errors have happened in these proceedings, which this court can, and ought, to review, the question is, in what court did they occur. That the conviction for the contempt, and the attachment upon which the prisoner was committed, were proceed
I am, accordingly, of opinion, that the writ of error ought to -be quashed.
Before I enter upon the consideration of the case, it will, be proper to submit a few observations relative to the title under which I now claim the privilege of addressing the court. Doubts seem to have been entertained, by some of the members, whether the judges had authority to take any, and if any, what share in the important questions which have arisen in the course of this cause. Indeed it has been thought necessary, that a formal vote should be taken, allowing us to give an opinion, on the present occasion.
The 32d article of the constitution declares, that this court shall consist of the president of the senate, for the time being, and the senators, chancellor, and the judges of the supreme court, or the major part of them. These are the officers who are to constitute the court. This is its general description ; its permanent and component organization. The remainder of the article qualifies and restricts the exercise of this judicial power by the chancellor and judges, in certain specified cases. In case of impeachment, the chancellor, or judge impeached, is suspended from exercising his office, until his acquittal. In this instance, the disqualification for the time being, becomes complete and absolute, and the officer cannot sit as a member. But in cases of appeals and writs of error, the language of the constitution is materially different. It imposes no other restriction upon the rights of the chancellor and judges, as full and perfect members of the court, than simply this : that on appeals, the cha
Having said thus much in explanation of my rights, I shall not demand to go beyond the rule of court, on the present occasion. It reserves to the judges the right to state their opinion, upon every matter which may arise upon the hearing of a cause brought up by writ of error. Though this leaves them in a mutilated condition, with, rights half retained and half destroyed, I do not think that this is the proper moment to revise the rule. I mean only to be distinctly understood, that the opinion which I am now to deliver, I give, as a matter of right, not of license; that I stand here, not as a tenant at will, but on a constitutional freehold, from which I will not be driven, without a contest.
Upon the motion now before the court, two questions present themselves ; 1. Whether a writ of error will lie, in any case, upon the award of the supreme court, remanding a prisoner, upon the return to a writ of habeas corpus.
2. Admitting that it will lie in any case, whether it ought to be sustained in the case before us.
So much has been said upon the argument respecting the powers and authority of this court, that it will be useful to endeavour, in the first place, to ascertain the true and legal limits of its jurisdiction.
This court is as much- bound by law as any other
Such language cannot have been used with success. The constitution early taught me to cherish better hopes of this assembly. This venerable body is chosen from large districts, for a long time, and by independent lords of the soil. It must be presumed to consist of gentlemen of intelligence, of integrity, and of extended reputation. They must feel all the pride and dignity of character, which their elevated station inspires. Whatever political divisions may agitate them in the exercise of their senatorial duties, they will lay them all aside when they assume the graver character, and high responsibility of judges. In this solemn temple, this last retreat of
The powers of this court are to be known, and known only, from the constitution, and the act Organizing the court. From them it will appear, that a writ of error does not lie, except upon a final judgment of the supreme court.
The constitution ordains, that this court shall be instituted, under the regulations which shall be established by the legislature. It further declares, that when a cause shall he brought up by a writ of error, on a question of law, on a judgment of the supreme court, the judges shall assign their reasons for their judgment, but shall not have a voice for its affirmance or reversal. It is, then, on a question of law on a judgment of the supreme court, that error lies. These are the words of the constitution; and the idea that it lies for any other errors, if any there be, than those involved in a judgment, is extremely incorrect. The statute was designed to institute and regulate the court; but it could not enlarge its jurisdiction, in the cases in which the constitution had already defined it. It could not authorize a writ of error, but upon a judgment rendered; nor docs the statute admit of any other meaning. It. is not good logic to reason from these preliminary expressions in the statute, that “ all errors happening in the supreme court shall be corrected here j' unless we, at the same time, compare them with the context, and the other provisions in the act. Who ever heard of expounding a statute by reading one line only r The words all errors, mean all errors that are involved in a final judgment; and if we read and compare the whole section together, this meaning will be made manifest. The statute goes on and says, “ that it shall be
Here, then, we have, in one view, all the powers of this court, on the subject of a writ of error, as granted by the constitution, or declared by law. It is a wise and cautious provision. It gives this court no unusual appellate jurisdiction; no superintending discretion. It isa court with plain, precise, and intelligible barriers. No man could surmount them, without being conscious of committing a crime. The power of review is simply confined to a judgment and final decree; and when the constitution spoke of a judgment of the supreme court, it used a technical term, perfectly familiar to the sages and patriots, who enlightened and animated our first convention. They never intended any thing more than those ordinary writs of error, which, by the settled practice, lay to the exchequer-chamber, or the house of lords, upon the judgments of the court of king’s bench in England.
The convention of 1777 knew nothing of the revolutionary novelties, and madness of a subsequent period. They formed our constitution with all its legal and technical definitions, upon the approved wisdom, the sober sense of the English common law, which they most providentially ingrafted into our system. Nothing can be plainer than the path before us. Our
The English system of jurisprudence, had fostered the soundest and most rational principles of civil liberty. Under it our fathers had lived and flourished, and from it they had imbibed, and, I hope I may say, transmitted to us, that lively sense of order, of decency, of moderation, and of right, which is inculcated by its generous institutions. We must, therefore, constantly recur to the English common law, to explain the technical language, and the sound import of our laws and constitution. If we depart from this plain standard of interpretation, we set every thing afloat, and our constitution becomes a mass of unintelligible matter.
Assuming it, then, as a solid principle, that a writ of error lies here, only when it would lie on a judgment of the K. B. I proceed to show, by decisive authority, that it will not lie in England, upon an award made on the return of a writ of habeas corpus. If I establish this point, as I most assuredly shall, the writ in the present case must be quashed ; for this court will never violate the law which it is sworn to administer. - =-"
The first case which I cite is that of the City of London, which arose in the common pleas, the 7 Jac. I. (8 Co. 121. b.) It was the case of a habeas corpus, issued out of that court to the mayor, aldermen and sheriffs of London, to bring up the body of one Wagoner, who xvas in their custody upon civil process, for breach of a. by-law. A return xvas made to the xvrii, and, upon as objection to its sufficiency,, the court resolved it suffi
This case is taken from Lord Coke's Reports. The opinion is precisely in point. It was a resolution of the court, delivered by Lord Coke himself, who was at that time chief justice of the C. B. and who has always been regarded as an oracle of the common law. This solemn opinion, coming from such high authority, and made with the return of a habeas corpus before the court, has now stood the test of two centuries, as an uncontrovertible principle, without a precedent or a dictum to oppose it. The counsel, I observed, trod very lightly when he approached this case. To overthrow it would be tearing up the common law by the roots. If principles of such old and sturdy growth arc to be subverted, what plants can hereafter endure the tempest ?
This declaration of the C. B. has not only stood uncontradicted, but it has received affirmatively the strongest sanction. In the case of The King v. The Dean and Chapter of Trinity Chapel, in Dublin, (8 Mod. 27. 1 Stra. 536.) which was in the K. B. 8 Geo. I. the doctrine of the case in Coke was pointedly recognised. The case arose upon a writ of error from the K. B. in Ireland, to the K. B. in England, brought upon the award of a peremptory mandamus. The principal point in the case was, whether , a writ of error would lie upon such an award. The K. B. unanimously resolved, that the writ would not lie, and it was quashed. The judges declared, that error would not lie on a conviction for a contempt, nor on the award of a procedendo, nor on the return of a rescue. They went further, ffiid said, in the. words of Lord Coke, that it was against the nature of a writ of error to lie on any judgment, but in causes where
This case is reported in two books of unequal authority. But there is no reason to doubt of the accuracy of the report, as I have stated it. The decision is the same, and the argument substantially the same, in both the reports. In Sir John Strange, the different counsel who argued against the writ of error, cited the case from Coke, as sound law, that on the award of a habeas corpus, error would not lie; and in Mod. Rep. the court say the same thing. There is no contradiction or repugnancy in the two reports of the case. But there is one circumstance which places the authority of the case in Mod. Rep. beyond a doubt. Lord Chief Baron Corny ns, in his Digest, (Pleader, 3 B. 7.) lays down the same rule, that a writ of error will not lie upon a habeas corpus, and he cites for it this very case in 8 Mod. Rep. He must have known of the accuracy of the case, for he was an eminent counsellor at the English bar, at the time of the decision; and he is of himself a great authority, since, as Lord Kenyon, has observed, he was considered by his cotemporaries as the most able lawyer in Westminster-Hall.
This case was near twenty years after the celebrated controversy concerning the Aylsbury constables, in which Lord Holt acted such a distinguished part. It. shows.
jn that of The Queen v. Paty and others, (2 Salk. 503. 2 Ld. Raym. 1116.) the defendants were committed to custody, by the house of commons, during the pleasure of the house, for a high contempt of their jurisdiction, and breach of their privileges. They were brought into .the K. B. upon a habeas corpus, and, after solemn argument in favour of their discharge, and great consideration by the court, they were remanded back to custody, by the opinion of three judges to one. The case exciting great interest, an attempt was made to bring a writ of error. Application was made to the queen for the writ % and after much difficulty, and upon the advice of the judges, that a writ of error was a writ of right, and not of grace, she agreed to allow the writ, which was prevented by the prorogation of parliament. It is remarkable, however, and deserves our particular attention, that there is not a single opinion to be found, given by any professional character of that day, that a writ of error would lie in the case. The suing out of the writ was a thing of course, and no evidence that it could be sustained, when it came judicially before the lords. The attempt was nothing but a bold experiment upon the intemperance of party zeal. In the report of the case by Serjeant Salkeld, there is only this dry observation of the reporter, “ that it was a doubt whether any writ of error lay upon a judgment given on a habeas corpus.” The report in Lord Raymond adds, by way of memorandum, to the decision in the case, that after the resolution of the court to remand the prisoners, they were moved that a record might be made of the case, and that the judges in vacation agreed upon the form of entry. It may possibly be thought, that, as the judges of the K. B. agreed
The proceedings in parliament, upon this Aylsbury case, were referred' to by the counsel, who spoke against the motion j but I- think I1 can place them in a more correct and interesting view. They are detailed at large r.n the 8th volume of the State Trials. (p. 90 to 163.) When jPaty and others applied to the queen for a writ of error, upon the refusal df the king’s bench to die-
The lords, considering the interference of the commons as an attack on their jurisdiction, made also their address to the queen, in which they declare, that they did not mean to say, whether a writ of error would or would not lie, upon the award of the king’s bench upon the return of a habeas corpus. That they only undertook to say, that it did not lay with the commons to decide that question, and that it would be time enough to decide it when the writ of error was returned. The lords, therefore, in order to preserve their appellate jurisdiction from the control of the commons, prayed that the writ of error might be granted j and the queen, in her answer, said, that she should have granted the writ as desired, had she not been under an absolute necessity of immediately proroguing the parliament, which she accordingly did; and thus ended the controversy.
The house of lords, then, in this case, gave no more countenance to the idea that the writ of error could be sustained, than this court did, the other day, when they denied to the chancellor the right to supersede the writ. They only meant to reserve to themselves the right to determine the question; and all the weighty arguments contained in the resolutions of the commons, remained unanswered, and in undoubted force. >
I now submit to the candour and judgment of this court, whether I have not sufficiently shown, that by the English law, a writ of error will not lie in this case. We have the unanimous opinion of the court of C. B» m the time of Lord Coke* We have the resolutions of
If we recur to those, general principles, which apply to, and govern writs of error, they will serve to confirm oúr conclusions.
In Metcalfe's case, (11 Co. 38.) v/hich was upon error from the common pleas, the court of K. B. determined, that á writ of erro'r did not lie' upon an interlocutory' judgment, in an action of account, because it was but am award, as that am assi'se should be taken, or a writ of inquiry issued, or a partition be made. It was not a fina! anddefinitive judgment iná cause ; and error only lay on a-judgment, in which all the matter in the’ original cause was" determined'; for: if the record was to be removed; until1 then, only a partial view of the subject would-be taken, and there would be a failure of right. This doctrine is solid, and has" never been questioned. It would produce infinite vexation to the courts, and oppression to' the suitors, if error lay on* any other than a- final determination upon the merits of the causé. And it" is absurd" to
The counsel against the motion, admitted that error would not lie in the case of a mandamus, because, he said, that was a subject resting in discretion. The same
This court, upon error brought, is not only to reverse the judgment of the supreme court, but to render such judgment as that court ought to have rendered. Let us pursue this idea to its practical consequences. Suppose the supreme court, upon habeas corpus, remands a prisoner, by refusing to bail him, or remands him, because the bail he offers is insufficient, and he brings a writ of error, what is this court to do in these cases ? Are they to determine here, by vote, when a prisoner ought to be bailed, and in what sum, and with what sureties ? Is this court created for such purposes ? Have they any such discretion ? Are they competent to exercise it ? This would be assuming original criminal jurisdiction, without colour in law, or precedent upon record. Suppose, again, that the supreme court discharge a prisoner on bail, when he ought to have been remanded, or discharge him altogether, when he ought,to have been delivered upon bail; arc the people, by their attorney-general, to bring a writ of error, in order to reclaim the prisoner ? If the prisoner, can bring a writ of error,
2. But, laying all these general considerations aside, there are special reasons arising in this case, which render it impossible to sustain the writ of error. This I will now briefly, but conclusively, demonstrate.
The record shows us, that the prisoner brought into the supreme court, was detained by process from the court of chancery, founded upon a conviction in that court, of contempt and mal-practice. The legality or illegality of that conviction, never could have been considered in the supreme court, because the constitution does not give to that court any jurisdiction, by way of review or appeal, over a proceeding in chancery. The cognisance of such proceedings belongs exclusively to this court., which cannot, upon the writ of error, do any thing, like final justice, in the case. It cannot do anything but what the supreme court ought to have done. The conviction in chancery is not before them. They cannot touch its merits. All that the supreme court had before it, and all that this court now has, is merely the process of execution, founded on that conviction. If the court could lawfully review the conviction isi
Again, If this court, by means of some newly discovered power, could discharge the prisoner from the process of commitment, it would confer no honour, or lasting benefit, upon the prisoner, for the conviction would still remain in force. The party now complaining, would still be adjudged guilty,.and might instantly be imprisoned on the same sentence. This would be an inevitable legal consequence; for to suppose a conviction can stand good, without satisfaction or reversal, and yet be without efficacy, or power of execution, would be to suppose an absurdity. *> * *
There is still another difficulty before us, to be surmounted. It appears by the record, that the prisoner was bailed in the supreme court, and that, at the last August term, he did not appear on being called, but chose rather to forfeit his recognisance. This is all that the court can judicially know of him. He is now at large, from what appears by the record. The writ of error is then palpable nonsense. It has no object. It cannot touch the conviction, for that lies in chancery; and it cannot deliver the party, for he has already absconded. If, how
But it may be asked, if the writ of error will not lie, •is this to be a case without redress ? Can a solicitor be imprisoned, at the pleasure of the court of chancery, and 210 tribunal correct the abuse ? While I admit, that the court of chancery is sufficiently amenable, in another way, 1 answer, that this is not the question before the court» ft has nothing to do now with that inquiry. The court is called upon to say, whether a writ of error will lie upon a habeas corpas f If they find that it will not, they are bound by imperious duty to say so. I think I have sufficiently shown, that if the writ of error was to be pursued, it never could bring up the merits of the case» The wishes, then, of the most lively benevolence, could not be gratified by this course. The real merit of the case, as far as we can judge from the record, turns on
. Finally, if the Gordian, knot is to- be cut, we odght,-ai least, to- call for the dignus vindice nodus. There ought to be an object befitting so bold a precedent. In this case, there is nothing which should disturb the tranquil course of the law. The party, 'say his'. counsel, might have appealed in, the'ordinary way. If he omitted to do so,, within the time of limitation, it was his own fault, or his folly. He has no right, now, to complain, nor to call on this court, to break in upon principle, to help him. One of his counsel said, that if he could not be relieved now, it would be tantamount to an imprisonment for life.' This was, a, very loose assertion. If he continues m
For these reasons, I am of opinion, that the writ of error ought to be quashed.
The Chanceemos. The question before the court arises on a motion of the attorney-general, for quashing the writ of error issued in this case.
The points on which a decision is required, have received no judicial determination in the supreme court. They are intrinsically new, as to that court; but in the court of chancery, I have had occasion to consider, whether a writ of error would lie in this case ; the opinion, however, expressed on that occasion, is not now in review.
Where a public duty is to be performed, considerations of personal delicacy are appropriately and exclusively attached to the person whom they affect. Every suggestion, that, by possibility, all the embarrassments which they may involve will not be fairly estimated, may be construed into an imputation on the discernment of the mind but more particularly apply to an impeachment of tlje purity of its views. Such intimations I shall ever disregard, as unworthy to influence my conduct, as to deter me from doing, what I conceive my oEcial situation imposes, nor will I refrain from giving my vote in a case, n which, on any possible just construction of the constitution, I have a right to do so, and in which I am perfectly indifferent, my own duty being performed, and the correctness of legal principles respected, whether it is decided for quashing, or sustaining the writ of error.
The point to be decided arises on a dry question of
The strong appeal which has been made, rather to the feeling than the judgment of the court, founded on the allegation, that Mr. Tates was doomed to imprisonment for life, from which he could only escape by taking refuge in the grave, is within the knowledge of every professional man, destitute of the least foundation. Mr. Tates might have escaped much easier from his present situation, than by an imprisonment for the time to which he has been subjected.
, All that would, in the ordinary course, and for an ordinary contempt, have been required of him, would have been the usual submission ; and if the contempt was connected with the illegal exaction of money, or the imposition of an unwarrantable expense to the party injured, the repayment of such money to the person from whom it had been received under false pretences, and the payment of costs would have been superadded. If, for some reason, which he is not bound to explain, and into which this court cannot inquire, he has chosen to withhold such submission, or make such compensation to the party in-
I repel these intimations, because they ought not to have been pressed into the case. They are calculated to mislead, and have not the remotest connection with the matter now to be decided.
Having made these preliminary remarks, I proceed to examine the points on which the attorney-general has relied, in support of his motion for quashing the writ of error issued in this case.
The record states simply the issuing a habeas corpus, by the supreme court, its return, and an order to remit Mr. Yates to the custody of the sheriff of the city and county of Albany, to remain in the same state in which he was at the time of issuing the said writ of habeas corpus.
The points made by the attorney-general, are,
1. That a writ of error does not lie on a habeas corpus; and,
2. If it will lie in any case of habeas corpus, it will not lie in this.
It did not seem to be doubted in argument, that, whatever might be the form, the writ of error was intended to bring into review, indirectly, the proceedings of the court of chancery in this case.
To the constitution such a course is unknown; it is not recognised by law, for it is clearly a case neither within the express provision, or possible implication, of either. They embrace only cases of a direct review of decrees, in equity, and judgments of the supreme court
The nh section (Laws N. Y. 184.) of the act concerning this court, enacts, that all errors happening in the court of chancery, supreme court, and court of probate, shall be redressed and corrected here. That those from any judgment of the supreme court shall be brought up by writ of error. That this court shall have full power, and are authorized and required, to examine all such errors as shall be assigned or found in such record, or any process or proceeding concerning the same, and to call upon the judges of the supreme court to assign the reasons of such judgment, and thereupon to reverse or affirm the same, and to give such other judgment thereon, as the law shall require; and shall then cause the transcript of the record, with their judgment thereon, and all things touching the same, to he remitted into the ■ supreme court, where such further proceedings shall be thereupon had, as well for execution as otherwise, as may be agreeable to law and justice,
1. What was the law on the subject, in England, the time of the revolution ?
2. What diversity arises under the constitution and laws of this state ? .
To determine on the first of these, it becomes necessary to examine the English authorities, which have a (bearing on it.
The first, in order of time, is the case of the City of London, reported in 8 Co. 127. which arose in the king’s bench, on a habeas corpus to bring up the body of James Wagoner, who had been arrested in London, and remained in custody,, in an action for a penalty alleged to have been incurred by the breach ©f a by-lav/, made to enforce one of the customs of that city.11 To the return of the habeas corpus, it was objected, that it consisted much in recital of matter which ought to have been directly and certainly alleged. To which it was answered and resolved., that this is not a demurrer in law, but a return to a writ of privilege, upon which no issue or demurrer can be taken; neither upon an award thereon, doth'a writ of error lie. This is therefore an express adjudication, not an obiter dictum. The word resolved, is a technical legal word, made use of appropriately to distinguish the opinions of the court, throughout the whole of Coke's Reports and several other reporters, from loose sayings of their judges, which have not the weight or authority of strict judicial decisions. It was, in this case, an expression of that opinion, on the very point submitted; and it contains the reasons why the return, in the point objected to, was sufficient.
In the case of The Dean and Chapter of Trinity Chapel, in Dublin, (8 Mod. 28.) which arose on a writ of error from the king’s bench in England., to the king’s bench in Ireland, on a mandamus, in the arguments of
From its being indicated as a quotation, (8 Mod. 30.) ' it would seem to have been carefully extracted from some case in Ear dres; but in the page referred to, no subject connected with it appears ; nor have I been able to discover, that it is a quotation from any part of that reporter. But the court, in giving their opinion in the principal case, lay it down, “ that it is against the nature of a writ of error to lie on any judgment, but in causes where issue may be joined and tried, or where judgment may be had upon a demurrer, and joinder in demurrer; and that, therefore, it would not lie on a judgment for a procedendo, nor upon the return of a habeas corpus.”
This was brought up on a writ of error to the house of lords, and eight judges attending, the lord chief baron acquainted the lords, that all the judges of En• gland were of opinion, that a writ of error would not lie ; and the judgment of the king’s bench was affirmed. (Fortesc. 329.)
In Paty’s case, reported in 2 Ld. Raym. 1105. Holt, 326. Salk. 504. it appears from the latter, that the judges of the king’s bench settled the form of the entry, which would seem to have been done for the purpose of grounding some ulterior proceeding; for the court having been moved, that a record should be made up, the judges met in vacation to devise the form, and frame the report.. In Salkeld., it appears, a question was stated and referred to them, whether the queen ought to allow a writ of error in this case, or in any other case, ex debito justifies, or ex mera gratia ? And ten of the judges were of opinion, that the queen could not deny the writ of error, but that it was grantable ex debito
This ease arose, on a commitment, by the house of commons. It caused much sensation, at the time » and 'lie celebrated case reported by Hargrave, as the great o'ace of Ashby v. White, (8 State Trials, 158.) from a small bool-, published under that name, in 1705, and sometimes referred to as the case of the Aylsbury Constables, details the proceedings of the lords and commons of England,, on the subject.
In a conference between the managers-of the house of commons, with the lords, the former alleged, “ that, in case no writ of error lies, it cannot be said, that the denying it is an obstruction of justice, or contrary to magna ckavtaP
“ That a writ of error lies not on any proceeding or ha *- hcas corpus, has been the uniform opinion of former times, as appears in the case of The City of London, (7 Jac. 1.) where one under arrest, for the penalty of a by-law, ¡brought his habeas corpus, and the judges took it for a ground, that no issue or demurrer could be joined upon the return, nor could any zvrit of error lie upon the awards and upon that, as a principle, grounded their restoration; and that this never came directly in question, was, because a writ of error zuas never asked,, much less had, upon the bare commitment of any court whatever, and it is hard to imagine, that there is any lawful resort or appeal for liberty left untried at this day.”
In the address of the lords to the queen, on that subject, they state, that three judges remanded the prisoners, contrary to the opinion of Lord Chief justice Hole, without denying the allegations of the managers; but insist that the house of commons have no right of judging, witefbtar a writ of error is properly brought $ that unless
In the case of Groenwelt v. Burwell, (1 Salk. 144.) it was held, by Holt, Chief Justice, that error would not lie' upon a judgment of the censors of the college of physicians, because their proceeding is not according to the common law.
In the case of Pender v. Herle, (3 Brown's Parl. Cas. 178.) decided in the house of lords, which came up on a writ of error, from the king’s bench, on a peremptory mandamus, it. was insisted, that it was merely an award of the court, and not a strict formal judgment j and upon the unanimous opinion of all the judges, then present, it Was adjudged, that the writ of error, being brought upom proceedings at common law only, the one in that case should be quashed.
The case of The King v. The Dean and Chapter of Dublin, (Stra. 541. 543.) arose on a mandamus, and was decided on an ex parte argument. Eyre, Justice, observed, that the entry was without an ideo consideratum est i in all procedendos, it was with it, and yet it is certain, error will not lie. (Comb. 76. 5 Ld. Raym. 213.) •'
The answer of the judges to the question, stated by the queen in Paty's case, whether a writ of error could, be denied by her, in that case, or any other, was evidently intended, as a general response, to meet the generality of the inquiry; but the doubt expressed applied particularly to the case in question, and clearly shows, it was not intended to be embraced in the general proposition. It was no more than the expression of this opinion, to aid the crown, in the exercise of its prerogative, and not a judicial opinion ; and is destitute of that weight which such an opinion carries with it.
This doctrine is strongly corroborated by the cases cited, which shr«f, that no writ of error will lie, on the denial of a p?ohibition; (1 Salk. 136.) on a procedendo ; (8 Mod. 28.) on the denial of a mandamus; (Str. 541.) on a summary conviction; (1 Ld. Raym. 469. 1 Salk. 144.) or on a mandamus, before it assumes the shape of an action.
To this doctrine has been opposed the position (Co. Litt. 188. a.) that a writ of error lies on a judgment, or an award in the nature of a judgment; and cases of fines, statutes-merchant, statutes-staple, and outlawry, have, been shown, as exceptions to the rule.
These, in my opinion, are not exceptions, but satisfy the precise terms of the definition on which a reliance has been placed. They are all in the nature of a judgment; and the last of them is, in fact, a judgment»
The case of a procedendo seems to me to bear a strong analogy to the present. It was admitted, in argument, that a writ of error would not lie in it. The function of aproccdendo is to remit a cause to an inferior, from a superior court, to which it has been removed by writ, either granted on a suggestion, or of course. It directs the inferior court to proceed, either because the Suggestion has not been sustained, or because the party who procured the removal has not conWmed to the rules prescribed by the superior court in such cases. It is intended to restore the statu quo. The distinction taken, that when the court below has done every thing in its power, and dismissed the cause, it is in the nature of a judgment, is fully met by the case of a procedendo; for if the suggestion is examined, and held insufficient by the court, its judgment has been exercised» its opinion has had effect, and, in common legal parlance, it may well be said, it has given its judgment; but it is not that strict technical judgment %vhich the. law recognises as such.
This brings me to the inquiry, what diversity exists between the English laws and those of this state, on the
Whether the present case is one under the statute or not, it will tend to elucidate the doctrine contended for, to trace its application in a variety of cases to which it may be applied.
In dissecting the doctrine, every attempt to rely on it# as a protection against oppression, will elude our grasp j for as it has been laid down as universal, the remedy# to be effectual, ought to be coextensive.
The far greater portion of the year is composed of vacations of the supreme court. The terms prior to the present session, could not, collectively, exceed eight weeks in the year. In the vacation, a habeas corpus may be granted by the court of chancery, which is always open; by a justice of the supreme court; or by a commissioner# in cases arising under the habeas corpus act, Suppose it brought before the chancellor, and he remands the prisoner, will a writ of error lie to him ? That has not, and 1 believe will not be contended. Suppose it be before
But suppose the supreme court, the only common law court the opinions of which can be revised h$re, in error, should decide in favour of the enlargement of the prisoner, the attorney-general, who has the same right to issue a writ of error as the party imprisoned, might issue one; and thus,' notwithstanding a decision of the whole court in favour of his liberty, retain him in custody; for
The first and most prominent diversity, is derived from the jurisdiction and power exercised by the British house" of lbrds, which, it has been insisted, are possessed by this courts,
The British house of lords composes the supreme judicatory of Great Britain i it incontestably holds the residuum of power exercised by the aula regia, and which did not, upon its dissolution, devolve on the courts of original jurisdiction. The extent of their power is to be sought in the remotest annals of the British nation j and through such an obscured and extended medium, the researches of the learned, and the speculations of the ingenious., have been barely able to discern, that it is illimitable as to object, as to all matters of appeal; that it has occasionally exercised a power, perhaps a right of acting, an if possessed of original jurisdiction; and it is well known, that it professes to regulate its conduct by customs and precedents; but avowedly expounding* adding to, or adapting them, as its conception of honour and justice dictate; and this* according to Blackstone,66 in conse - quence of the confidence reposed in the honour and conscience of the noble persons who compose that important assembly, that (if possible) they will make themselves masters of those questions upon which they undertake to decide, and in all eases refer themselves to the opinion of the judges, who are summoned by writ to advise them, since, upon their decision, all property mast finally depend»53
This court is very differently constituted, in the original nature and extent of its powers. It is limited by g written constitution, and explained by laws enacted under its authority. Its members are subject to impeachment, ii¡> common with all the public officers of the state; are bound
It must, therefore, be obvious to a man of the least reflection, that those courts are placed on very different bases; and though the modes of doing business, and the principles which regulate their decisions, may, in many instances be similar, that this court is strictly and conscientiously hound to conform to the constitution and laws, and can have not the least pretence to exercise any other appellate jurisdiction, than that which is expressly delegated by one or the other.
In resorting to the constitution, in the section I have, already quoted, we find, that no other questions are to' he brought up from the supreme court to this court, but questions of law on a judgment of that court. The statute organizing this court, provides, that where any judgment of that court shall be brought up, this court shall reverse or affirm the judgment, and give such other, judgment thereon, as the law shall require, and then re - mit the transcript of the record, with their judgment thereon, to the supreme court.
It has been urged, in argument, that the words of the act are very comprehensive. It provides, that all errors happening, &c. shall be corrected in this court. But if the whole section is collectively taken, the word all, may and must, from its terms, be exclusively applied to those which have arisen in the cases in which the judgment has been brought up for review j and as it has not the words found in Coke's definition of the cases proper to be corrected in error, “ or in the nature of a judgment,” by all the rules of sound construction, it may well be doubted, whether even fines, or ,s tatutes-mer chant or staple, if the latter obtained in this state, could be
These diversities between the English laws and those of this state, it appears to me, are of much weight, and add considerable force to the considerations deduced from the former, to show that a writ of error will not lie here on a habeas corpus.
2. The second point made by the attorney-general, was, That if a writ of error will lie in any case of habeas corpus, it will not lie in this case.
All judicial proceedings, in this state, affect either persons or things.
To give a court cognisance of a person, he must either be actually brought into court, have been summoned, or have so eluded the process of law, as to expose himself to have his non-appearance imputed to him as a laches or, fault. As to things claimed in specie, the like process obtains to bring in the person whose rights are to be adjudicated upon; and beyond this and the inferences legally, and unavoidably deducible from it, there is no legal competency, consistent with the existing laws, to pronounce judicially on matters relating to either the person or property.
Let the case now in review, be brought to this test;
Is the person of Mr. Tates either under the control of this court, or of the supreme court ? Is the record of his conviction for a contempt here ?. Neither one nor the other can properly be considered as here. The exigency of his recognisance, into which he entered in the supreme court, was not complied with by him. The estreat ivas manifestly on the ground, that in that court he did not appear, according to his stipulation. The court ordered him to be remitted to the sheriff of Albany, on the attachment, and he united with the formal act of the ' curt to place himself without its reach,
1. To reverse the judgment;
To render a new judgment j
3. To remit it to the supreme court.
To get at the second and third point, a leading step must be taken, and the judgment pronounced erroneous. This done, what is. the object of the new judgment ? What possible legal shape can it be made to assume, so as to affect the court of chancery ? This court cannot, as on an appeal from chancery, give directions. The judgment must be determinate in its terms, and defined with absolute certainty, as to its object. Can it solemnly pro-¡. nounce, that Mr. Tates shall be set at liberty by the supreme court ? However elevated and respectable the tribunal,that so pronounces, it cannot be received as the judgment of law.
Can the supreme court reclaim Mr. Tates, unless they issue a hab'eás corpus de novo ? What legal power is there in this state to direct it to do an act, which rests solely and exclusively in its legal discretion, and which, the instant it is touched by the unhallowed hand of power without right, loses all its value. Can they say, in their excuse, if they submit to it, that they dare not execute the laws. The solemn and impressive admonition, contained in the prayer of the commons of England, in the perilous times of Henry IV. emerging from a state of, society, in which the will "of the powerful was too often the law of the weak , forcibly exemplifies the high responsibility and independence expected from the judiciary; for in it they pray, that justices (libe not received for their excuse to say, that they dare not do or say the law, nor their intent, for doubt of death; or that they are not free of themselves; because they are more bound by rea
Will this court direct the court of chancery to discharge Mr. Tates P It would be repugnant to every principie of the constitution and laws. Should it discharge him by its own order, he may, in the assertion of the jurisdiction of the court of chancery, which even this pre-eminent and distinguished court cannot control but on appeal, be the next moment recommitted ; and if such, upon a full and due consideration in the court of chancery, should be deemed the duty of that court, what could possibly absolve it from a performance ? As I am at present advised, and giving my opinion, as a member of this court, the chancellor so thought, it would be a gross dereliction of duty, and an indelible disgrace to the administration. of justice in that court, if he refrained from it.
As to remitting the judgment of this court to the su» pretne court; what can be remitted ? Not the person» not a transcript of the record of conviction ; not a judgment, on which further proceedings can be had, as well for execution, or otherwise, as shall be agreeable to law and justice.
No law has been found to establish principles, on which farther proceedings can be founded, nor can any possibly be adapted to this case, to subserve the interests of justice.
I have thus submitted my reasoning on this subject j and shall add nothing more than that I am for quashing the writ of error.
Clinton, Senator. . A second preliminary question is presented to us for our decision: Whether a writ of error will lie on a judgment on a habeas corpus P And, in arriving at a determination, we ought to keep out of view the merits of the cause. Whether a commitment for a contempt ought to be considered by other tribunals, as excluding their ^interposition ? Whether the proceedings
As there are several kinds of habeas corpus, it may be proper to remark, that the habeas corpus which now occupies our attention, is styled a habeas corpus ad subjiciendum. (3 Bl. Comm. 130.) It is a writ directed to a person detaining another, commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum et recipiendum, to do, submit to, and receive, whatever the judge or court awarding such writ shall consider in that behalf. Whenever a man is restrained of his liberty, it removes his body and cause (3 Bac. Abr. 1.) to some jurisdiction, which hath authority to examine the legality of such imprisonment, and either to bail, discharge, or remand the prisoner. It is a writ of right, and demandable ex debito justifies ; (3 Bac. 2.) and it is stated by a celebrated writer, to be in the nature of a writ of error, to examine the legality of a commitment» It is a creature
Our statute, on this subject, enlarges the common law remedy, and authorizes a judge in vacation to issue a habeas corpus. If the prisoner is not satisfied with the decision of the judge, he may bring his case, de novo, before the supreme court; or, if the judge does not choose to decide, on account of the importance and difficulty of the case, he may bind the prisoner to appear in that tribunal, and wait its termination. Although, from tire statute provisions, this writ may be issued by a judge, in vacation; yet, in its inception and original character, it was an appeal to a court, and in the nature of a writ of error. In this light it ought to be viewed; and its salutary and remedial nature, its protection against tyranny and oppression, its shield in favour of personal liberty, and the exalted light in which it is contemplated by our constitution and laws, ought also to be taken into consideration; for it is certainly our duty to give this writ its most extensive operation, to protect the citizen, in the remedies prescribed by law against unjust coercion; and to furnish him, if practicable, with the same means of redress, against an invasion of his personal rights, as now apply as a safeguard to the rights of property.
This is, certainly, a case of the first impression, and which has never been adjudicated and determined. The few scattered dicta which are to be found in the books, are entitled to little respect. In the celebrated case of The Queen v. Paty and others, upon which I shall presently remark, (2 Salk. 504.) the reporter observes, at the concia
In the erection of a supreme court, invested with appellate jurisdiction, it was obviously the intention of the constitution, to give it a controlling power over the decisions of the courts of original jurisdiction, affecting the rights or the interests of individuals. It is not to be supposed, that our laws intended to afford more guards and fortresses for the protection of property, than for the protection of liberty; that in the oi e case, the suitor may pursue his redress into this court, and that in the other, he is to be^precluded by the first decision. In order to guard against the fallibility of the human understanding, and to shield the citizen from the attacks of injustice, it may be regarded as a cardinal principle in our laws, that no single tribunal is intrusted with the sole determination of a man’s property. Writs of error, bills of exceptions, demurrers to evidence, and appeals, are provided as remedies; and shall it be said, that property is considered more sacred than freedom; that the rights of things are prized more highly than the rights of persons i Upon the general view of the case, we would then say, that our citizens ought to be invested with the same appellate rights, in cases relating to the person, as in those that refer to the property} that the decision of a court of original jurisdiction ought not to preclude a writ of error; and, that the benefits of a habeas corpus ought to be carried to the utmost possible extent of liberality.
It is stated in Coke on Littleton, (288.) that without a judgment, or an award in nature of a judgment, no writ of error doth lie. Assuming the truth of this position, h remains to inquire, whether a decision on a habeas corpus is a judgment, or an award in the nature of a judgment.
I shall not condescend to inquire, whether the precise phraseology, generally adopted in the entry of judgments, is used in cases of habeas corpus P I see no magic force in the words “ ideo consideratum est,” and shall leave such technical jargon to those who sacrifice substance to form, and principle to precedent. The entry of the decision in the record before us, is: “ Whereupon all and. singular the premises aforesaid, being seen and fully examined and understood by the justices aforesaid, now here, it seems to the justices aforesaid here, that the aforesaid cause of commitment of the said John FI N» Tates, to the custody of the sheriff of the city and county of Albany, in the return of the said sheriff above specified, is good and sufficient in law, to detain the said John FI M. Tates in the custody aforesaid. Therefore, the said John V* N. Tates is, by the justices aforesaid here, remitted to the custody of the sheriff of the city and county of Albany, there to remain, in the same state in which he was, at the time of the issuing of the aforesaid writ of habeas corpusSrc.
A judgment is a decision of a court upon the case before it j and the last or final determination of a tribu '.•íal is the proper subject for a writ of error» When ' a
It is, however, contended, that there are cases in which a writ of error will lie, and in which no judgment is rendered, and that these cases are to be considered as exceptions from the general rule. In Cro. Eliz. 233. it
Although there is no adjudication to be found on this subject, yet, in 1704, in the reign of Queen Anne, the memorable prosecution of Paty and others took place, which will throw a flood of light on this case. It is reported in 2 Ld. Raym. 1115. and 2 Salk. 504. under
This warrant contained a specification of the supposed contempt; and as it was clearly not a breach of privilege, but the birthright of every Englishman, to prosecute in a court, for a redress of injuries, Lord Chief Justice Holt was of opinion, that the prisoner ought to be discharged. He was, however, overruled by the three other judges, who proceeded upon the ground of the undefined and omnipotent privileges of parliament. A record of the case was made "up, under the direction of the court, with a view, that a writ of error might be brought to the house of lords An interesting account of the proceedings, ©n this case, in parliament, is contained in the Sth volume of the State Trials. As there is, however, a faithful and concise narrative, exhibiting a connected view of the subject, in Smollett’s Continuation of Hume’s History of England, (vol. 1. p. 413.) I shall quote that author, in preference. “ The remaining part of the session was consumed in disputes and altercations
From this statement, it is manifest, that, although, in consequence of the prorogation of parliament, the question was not decided, judicially, by the lords, yet that they, in fact, gave an explicit opinion in the case, by stating to the queen, that writs of error ought to be issued, and that the prisoners were unjustly and illegally treated.
I know of nothing which has been urged against this doctrine, except some remote analogies, some distant allusions to the merits of the controversy, and some oh
And, first, this case has been compared to the cases of a procedendo, prohibition, and mandamus, in which error, it is said, will not lie.
A procedendo is a writ commanding an inferior court to proceed to judgment. It gives no decision, (3 Black. c. 7.) but directs one. The reason, then, that a writ of error will not lie, is obvious. A prohibition is the opposite of a procedendo. It prohibits courts from exceeding their jurisdiction, and meddling with causes that do not belong to them. For the same reason that error will not lie on a procedendo, it will not on a prohibition.
A mandamus lies in a variety of cases; (Esp. Dig. 661.) and is a prerogative writ, to enforce obedience to acts of parliament, and to prevent a failure of justice or police. It is used to restore a person deprived of some corporate or other right or franchise, or to admit a person legally entitled to the same rights. It directs persons having authority therein to do all legal acts connected with their duties and offices; and it orders corporations to proceed to elections, justices to execute statutes, and courts to render judgments.
The case of The Dean and Chapter of Dublin, in B. R. (1 Stra. 536. 8 Mod. 27.) was a case of error from B. R. in Ireland, on a peremptory mandamus, grounded on a return to a pluries mandamus to the dean and chapter to admit one Robert Dowgate to his seat and voice in the chapter.
On this case two questions arose: 1. Whether a writ of error will lie on the award of a peremptory manda mus; 2. On the merits of the return.
After two arguments, it was determined, that a writ of error will not lie, and it was quashed.
A motion was also made in chancery to order the B. $L in Ireland to mal'.e a return to the writ of error»
The dean and chapter, afterwards, brought a writ of error, in the house of lords, from the judgment of B. R. quashing the writ of error, which judgment was affirmed. (2 Bro. P. C. 554.)
Upon sifting the reasons assigned for this decision, in the four different reports respecting it, it will be found that they resolve themselves into three heads.
1. The form of the judgment; “ ideo considerafuttP being omitted. For fescue, Justice, very gravely insists upon this ; although Powys, Justice, rather'thought that u per quod consideratum Jiiit” was used in awards of a peremptory mandamus, and that such awards were judgments, on which error will lie. On the second argument, Eyre, Justice, takes his stand upon the want of an ideo consideratum est, and Powys, Justice, finding that he was mistaken in the entries, gives in. I trust that it is not necessary to treat this point with serious refutation. The award is substantially a judgment.
2. It was insisted, that a writ of error, operating as a supersedeas, would produce great inconveniences from delay, and from entangling the public acts of officers chosen annually in corporations.
To this the answer is easy. A writ of error on a
3. The remaining objection was, that an award of a peremptory mandamus gives no right, not even a right of possession. So that, if the judgment should be reversed, still the same right would subsist in the claimant, which makes the reversal signify nothing; and that a writ of error is intended to restore a party to something that is lost.
But does not a mandamus give the party possession* and is not this something gained to one, as well as lost to the other ? Waiving, however, this consideration, it is admitted, that error will lie on an issue in law as well as fact, on the proceedings on a mandamus, under the statute. After the return to the mandamus to show cause comes in, and the party waives a traverse of the return, admits the facts, and appeals to the court on the sufficiency of the return, whether it is sufficient in law to shut him out of his office, is not this virtually, and in essence, a demurrer ? And what essential difference is there between the informal issue in law, submitted to the court in this shape, and the formal demurrer after a traverse ? Why, then, should a writ of error lie on & peremptory mandamus under the statute, aiid not on á peremptory mandamus at common law ? Is it because the statute gives costs and damages ? But they do not compose the substance of the demand, which is the enjoyment of the office or franchise. Admitting, however, in its fullest extent, that a writ of error will not lie on á peremptory mandamus, at common law; and admitting, also, the sufficiency of the reason assigned, that it decides no right, how does this apply ? How is it to be likened to the case of a writ of error on a habeas corpus % Can it be pretended that a decision on it decides nothing ? Let us bring this doctrine to the touchstone of investigation.
The questions in the supreme court were: Is the prisoner legally confined, or not? Ought he to be restored, to his liberty, or not ?
The judgment of the supreme court was, that he was legally confined, and that he ought to be remitted to prison.
If the supreme court mistook the law, as the prisoner alleges, then this court is bound to give the same judgment which the supreme court ought to have given, that is, that the imprisonment is illegal, and that he be discharged ; or, in other words, a reversal of the judgment of the supreme court, and a remission of the record to that tribunal, with directions to act in the case, as it ought to have acted in the first instance, that is, to have discharged the prisoner, instead of having remitted him» If the supreme court did not mistake the law, then the judgment of this court will be an affirmance of their judgment, and the prisoner will remain in custody.
A determination of this court, being the judgment of a court of the last resort, becomes the law of the land, until altered by the legislature. All our decisions, which apply to general principles, are general lav/. All that apply tp individuals, become the law of the respective-eases. A judgment in favour of the prisoner would
This court is established by the constitution, for the review and correction of all errprs in the courts of pro- • bate and chancery, and in the supreme court. Unless it is contended, that the court of chancery cannot commit an error in proceedings on a contempt; or that the supreme court cannot commit an error in proceedings on a habeas corpus, I cannot conceive how it can be pretended that this tribunal is without jurisdiction in those cases. The court of errors, on writs of error, is composed of the president, the senators, and chancellor; on appeals, of the president, the senators, and judges of the supreme court. If the chancellor is absent or disqualified, by interest or prejudgment in the one case, or the judges of the supreme court in the other, it cannot affect the legality or constitutionality of the proceedings of the. court. A majority of the members constitute the court; and although the gravamen complained of in this case originated in chancery; yet the chancellor is a constitutional judge, and may, if he sees fit, give his reasons and vote. It,is conceded, that an appeal would lie from the commitment by the chancellor; why then not a writ of error from the judgment of the supreme court, which is in the nature of a commitment by that tribunal, the prisoner having been, at the time of the judgment, out of the custody of the chancery, and under their control.
The cases which have been stated, as cases of inconvenience that might occur, are irrelevant to the inquiry j but, admitting their application, they arc entitled to n@ weight.
2. The inconvenience arising from interfering with' convictions of contempts by courts, is imaginary and idle. It is essential to the administration of justice, that tribunals of justice should be armed with this authority; but it is not necessary that it should be unlimited, uncontrolled, indefinite, arbitrary, and omnipotent. It is to be remembered, that summary convictions are against the genius and spirit of our constitution, and in derogation of civil liberty. The judge is without check, and the accused without the usual guards of freedom. There is no grand jury to accuse ; no petit jury to try ; but his property and liberty depend upon the fiat of the court. Is there not the strongest necessity for a review of such convictions ? Is not the necessity of the check at least equal to the necessity of the delegation of the power 1 Suppose the court of chancery should commit a man for high treason j that the supreme court should commit a jury for giving a verdict against law, and against the direction of the court; that the house of assembly should commit a citizen for bringing a suit against an inspector for refusing his vote; that the senate should, under pretence of a contempt, commit the governor of the state, for sending a written communication, instead of making a speech, at the opening of the session, will any man have the hardihood to say, that the persons so improperly and illegally proceeded against, ought to be con-tinned in prison ? Although there is no reason to believe that such outrages will take place in these times, yet it must be remembered, that the freedom of the citizen ought not to depend on the moderation and virtue of the ruler, but upon the barriers which the law erects against the inroads of oppression. Two of the cases I have stated, have actually occurred in English history,
3. It is said, that the senate, as a court of errors, may be called upon to review a commitment, made by them as a senate. And why not ? May not cases occur, in which questions respecting the constitutionality of statutes may be tried in the court of errors, where the senate in their judicial character, determine upon acts adopted and sanctioned in their legislative capacity ? May not questions arise with respect to the validity of legislative grants, and the construction of statutes, in which the judge and the legislator will be blended together ? This arises from the constitution of the court, and will not frequently happen. Rut, let me repeat, that suggestions
The mercy of the executive is one thing, and the justice of the court another. A pardon is not a remedy in the course of law. It may, or may not be afforded, at pleasure ; and is entirely extrinsic from judicial proceedings. The sum of the reasoning is this; that a citizen may be deprived of his liberty, without the accusation of a grand, or the interposition of a petit jury, and upon the mere fiat of a single judge; that this judge shall be without control, and the citizen without appeal; that he must continue imprisoned for life, unless the judge shall relent, or unless the executive shall pardon. This doctrine may suit the meridian of Constantinople; but it is •utterly repugnant to the genius of a free government.
If the governor cannot, or will not, pardon; and if the legislature cannot, or will not, relieve, then a citizen may, at any time, upon the grounds contended for, be incarcerated for life, by a court composed of a single judge, and without the benefit of a trial by his peers, and the judge cannot be called to an account for his conduct. For, if I rightly understand the positions which are maintained throughout, they are these; a court may commit for contempt, whether perpetrated in court or not. This commitment, whether legal or illegal, cannot be examined or overhaled by any other tribunal; but it is to be considered as final and conclusive, and it may continue during the pleasure of the court. If the prisoner is brought up on a habeas corpus, the court is to remand him, the moment it is perceived to be for a contempt, and no writ of error will lie on this decision; and, although this may be wicked and oppressive, and may operate as an imprisonment for life; yet the court so acting is not liable to pu
In BushelPs case, where the sanctuary of a jury was invaded, where the lawful dispensers of justice were fined and imprisoned, and the immunities and rights of magna diaria invaded, the court decided, that the judges were protected, by their robes of office, from the sword of justice, and that the injured party had no other reme» dy than a habeas corpas. And shall this great bulwark against oppression be circumscribed and limited to a sin»
And what are the objections opposed to this extension of the blessings of the habeas corpus ? Are they not superficial, technical, pedantic, scholastic, and sophistical? Are they founded on enlarged views of the subject; on reverential feelings for the rights of the citizen; on a liberal construction, and a just view of the judicial functions and powers of this high tribunal ? Are they not founded on the letter which killeth, not on the spirit which giveth life ? With the most profound veneration, and the most exalted respect, to the great land-marks of our law, which define the rights of the citizen, and the powers of the ruler; for those elementary principles which compose the essence of all justice, and constitute the substance of all right, I entertain a correspondent contempt for that technical jargon, that metaphysical sub-til ty, and that legal chicanery, which would entangle justice in the nets of form, and sacrifice the essential interests of our country to the formulas of special pleading, and the scruples of legal sophistry.
Platt, Senator, said, that he concurred in the opinion delivered by the Chief Justice, and Mr. Justice Thompson, that the writ ought to be quashed.
Paris and Williams, Senators, were of the same opinion.
March 19th, 1810. This day the Chief Justice assigned the reasons of the judgment of the supreme court; (see 4 Johns. Rep. 317. 354.) and the cause was argued by Rodman and Emmet, ex parte Mr. Tates, on the" merits, as they appeared on the record returned by the supreme court; but the reporter did not hear the argument.
Cur. adv. vult.
March 27, 1810. This day being assigned for the final decision of the cause, the following opinions were delivered.
The Chancellor. In the progress of this case in its several stages, some harsh terms have occasionally occurred; certainly, with all that guarded decorum, which forensic discussions require, in cases circumstanced as this is. They have never been directly or disrespectfully applied; but from their manner and circumstance, those ■ who run might read, that they were not used as mere expletives, or in exemplification of general doctrines, but that they seemed to mean more than was expressed. One of the counsel hazarded the broad assertion, that if the question on the proceedings at large was before the court, he could clearly demonstrate, that the whole were illegal.
The judgment of the court is required on the record before us; and the case adjudged in the court of chancery cannot be fairly tested here, without examining it throughout, which it is not pretended can be done on
This case originated in the complaint of Samuel B<a-con, preferred by him on the 18th day of April, 1808, who charged John V. N. Tates, then a master, but not n solicitor, of the court of chancery, with having exacted from him 18 dollars, under the false pretence of being a solicitor; and subjecting him to great delay, and considerable trouble, in a suit which he had undertaken to prosecute in that court. The matter, after due notice to John V. iV. Tates, was examined, ex parte, and an attachment ordered against him. This order was opened, on his application, by an order to show cause why the former order should not be abrogated. He was permitted to pursue such course as his counsel thought proper. He disclosed his defence. His proofs, taken by affidavits, by examination of a witness in court, and on a commission issued at his instance, were considered, and not determined upon, until the 8th of August, more than three months after the complaint preferred. In his defence, it was not denied, that he had received the money which the complainant alleged that he had taken, under pretence of being a solicitor. That he had acted as solicitor, was fully admitted; but the bill having been filed by him, with the name of Peter W. Tates subscribed to it, as solicitor, he alleged, that it had been done by ■the consent of Peter W. Tates, which the latter denied; and thus the only doubtful point presented for decision, was not, whether John ViV. Tates had been guilty of mal-practice, for that was fully and unequivocally admitted, but whether the illegal exaction or imposition was attended with circumstances of more or less aggravation. The rule to show cause was discharged, and he was committed for mal-practice and contempt, on the ground, that
That part of the opinion expressed by the chancellor, on discharging the rule to show cause, which has been quoted in argument, is preceded by a sentence, which is necessary to be connected with it, clearly to understand the doctrine it inculcated.
The part quoted, is found in the 94th page of the report. [Here his honour read from a printed report of the case of Tates, containing the proceedings in chancery .j
u Though the commitment, I found, upon consulting precedents, must be absolute, and without any precise limitation, I shall have no doubt, that its duration ought to be contracted, as much as a due attention to public justice will admit, as the first instance of the kind occurring in the state. But an application to terminate it, can only be listened to, after the party injured has been fully remunerated.”
The sentence alluded to, which preceded that quoted, and which was not adverted to, is found in p. 87. and is in the following words :
“ I am totally averse to turn the party aggrieved, to seek his remedy at law, if he is entitled to such remedy here; as it is compelling him to travel in a circuitous, instead of a direct route. There certainly are cases, in which the court will leave the party to such resort: but this does not appear to be of that description; for though the nature of the jurisdiction to be exercised here, must, of course, stop short of that complete indemnity which the verdict of a jury might give, I think it competent to remunerate him, to the amount of the ascertained damages, for which a measure is disclosed by the case.”
That the matter laid to the prisoner’s charge is a crime prohibited by the statute; and, therefore, as such, js not cognisable in the court of chancery, which has no criminal jurisdiction; nor is it punishable any where, by an attachment for a contempt.
2. That the. conviction is founded upon evidence, which the law does not hold sufficient to warrant, a conviction, even for a contempt.
3. That the imprisonment, being in execution and conviction, should be definite, and terminate either by the effluxion of time, or on the doing of some act of the prisoner, and cannot be uncertain and indefinite, as until the further order of the authority inflicting it. ■
These points are again presented for the decision of this court, with the addition of a fourth :
That the commitment was by order, and not by warrant.
- Perfectly satisfied, that the doctrine laid down by the supreme court, on the first three points, is correct; that it does not require to be fortified; and that if it did, I have it not in my power to add to the lucid developement which has been exhibited in the opinion expressed on that occasion; I shall, as to all those points, adopt it, as conclusive to my mind. I shall only bring them into view, in considering the new attitudes in which they have been placed in argument, which has almost throughout been bottomed on that opinion, and the opinions expressed by the court of chancery, in this case, and in the case of Philip S. Parker Esq. recorder of Hudson, who, as commissioner, had discharged Mr. Tates from his imprisonment on the recommitment made in the court of chancery, after the opinion of the supreme court, on the first three points, had been expressed. This imposes it on me to take a more extensive range, than from the. limited view of the proceedings appearing by
I shall, in the first place, read the opinions given in the case of Parker, and in them will be found the cases cited,
The case ex parte Whitchurch,
To meet the other cases on this subject, it has been strongly urged, that the words stand committed, in some of the other cases, show, that the person committed, was actually and personally present in court at the time. In one of the cases, however, it appears, the person committed was in the Fleet prison, and not in court; and so in precise analogy to the case of an officer of the court, who is in court only by construction of law. But a conclusive argument to this verbal criticism is, that the same term is made use of, both in the English habeas corpus act, and in our statute of 1787, (Jones Varick's ed. L. N. Y. 77.) in the second section of the latter of which, it is enacted, “ that if any person shall stand committed or detained.” This is certainly not supposing the prisoner to stand in facie curia, but in prison, in the custody of the officer to whom the habeas corpus is directed. The other authorities are numerous, uncontradicted, and satisfactorily show the course of the court, which, according to the authority from Styles, can only be reviewed on appeal, and not in this collateral mode.
As that part of the report (see 4 Johns. Rep. 317.) which relates to the successive discharges and recommitments, brings up the case in a complicated shape; and as those proceedings, it has been supposed, must very materially influence the decision of this court, I prefer simplifying the subject, by considering the matters arising out of the return, as relating to those discharges and recommitments, as a preliminary question, distinct from the principal points to which the ex parte argument has been directed.
In the supreme court, the chief justice gave the opinion of the court, and Mr. Justice Spencer, and Mr-Justice Tates, dissented from it. Their opinions havq been read from the report, by the counsel, and so much relied on, as to make them the professed basis of argument, on this point.
Mr. Justice Tates states the only question to be, whether the power had been constitutionally exercised by the court of chancery ? That the constitution afforded any test, has not been pretended in argument. He divided the subject into an inquiry, whether a commitment for a contempt could be for an indictable offence, and whether a recommitment was warranted by law; and he limits the right of recommitment, to the court in which the prisoner may be subsequently indicted, or charged with a criminal offence, and pronounces the proceedings of the court of chancery, coram non judice, and that they constitute a summary conviction.
Mr. Justice Spencer, examined the subject on two grounds; 1. Whether the commitment of Mr, Tates,
On that part of the reasoning, contained in those opinions, relating to the want of jurisdiction, I have already mentioned that it is not my intention to enlarge.
The loftier the edifice, the more stable ought to be its foundation; and, if instead of pursuing the reasoning contained in those opinions, and the argument, in all their details, it can be made to appear that their basis is unsound, they cannot be admitted to influence our opinions.
The English habeas corpus act is precise in its terms, as to the exclusion of all other than criminal cases. The distinctions which have been taken, to induce the court to give our statute a more enlarged construction, showed that this was not contested ground. It has received that construction in England; and is so well established as to be laid down as settled law, by one of their best and most correct elementary writers ; (3 Black. Comm. 137.) and the doctrine is not there even doubted.
The English statute (31 Car. II. c. 2. See vol. 2. stat. at large, 208.) has the following preamble:
“ Whereas, great delays have been used by sheriffs, gaolers, and other officers, to whose custody any of the king’s subjects(a) have been committed, for criminal or supposed criminal matters, in making return of writs of habeas corpus to them directed, by .standing out an alias andpluries habeas corpus, and sometimes more, and by other shifts, to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king’s subjects have been, and hereafter may be long detained in prison, in such cases, where, by law, they are bailable, to their great charge*481 and vexation; for the prevention whereof, and the more speedy relief of all persons imprisoned, for any such criminal, or supposed criminal matters,”
The preamble of the statute of this state, of 1787, (2 Laws of N. T. 70. Jones and Varick's ed.) was, in every respect, correspondent to that of the English statute, excepting in the descriptions, in which it was necessary to depart from the latter, by substituting the word persons, for the words of the king’s subjects, and the details of delay, “ by standing out an alias and pluries habeas corpus.”
The first section of the English statute had not been precisely adapted, in its phraseology, to its preamble; and hence a more perfect adaptation was devised in the first section of the revised statute of 1787, by repeating the words sheriffs, gaolers, adding the word minister, instead of other officer, and instead of person, person or persons whatsoever.
In some other instances, while the original sense is studiously and carefully preserved, the mode of expression has been changed; in none, however, which have any relation to the points now under consideration. But the third section of the English statute enacts, that if any. person shall be, or stand committed, or detained, as aforesaid, for any crime, unless for treason or felony, plainly expressed in the warrant of commitment, in the vacation titne, it shall be lawful for such person, so committed, or detained, (other than persons convicted, or in execution by legal process,) or any one on their behalf, to complain to the lord chancellor, &c.
The third section of our statute enacts, that it shall and may be lawful for every such person (other than persons convict, or in execution, by legal process, or committed for treason or felony, plainly and specially expressed in the warrant of commitment) to apply to the chancellor^ or any judge of the supreme court, for a habeas corpus.
In the second revision of our laws, by the Chief Justice, and Judge Radclff, it will be found, that the
Instead, therefore, of seeking the history of the habeas corpus act jn tbe proceedings of the English house of commons, we find it, in a less questionable shape, in those of our own legislature, and so satisfactorily traced, as to .leave no doubt on the mind of any man of common sense, who will take the trouble of examining it with attention. And in doing so, it will be discovered, that this point, which has been so earnestly urged as indubitable, has no foundation but that of fancied affinities, which do not exist.
If this doctrine is correct j if the English statute relates only to criminal cases; if the statute of 1787 was conformable to it; if that of 1801 is in no other respect different than in the omission of the preamble; and if, in the construction of the statute, the preamble ought to be considered as still existing, how. is it possible that a case, treated here as not in the least partaking of criminal matter, in which the judge whose acts in vacation are thus, brought up, repelled the calling in of the attorney-general, by notice, on the ground that it was not a criminal proceeding, and which was approved and acted upon by this court, can be considered as affected by it ? It appears to me, that thus considered, the same construction must be inevitably attached to our habeas corpus act, as that which has obtained in England; it exclusively relates to criminal matters, or commitments to answer in .courts of criminal jurisdiction.
But there is another branch of this subject, which relates to tbe power to be exercised by a judge in vacation. The only difference supposed to be material in the present case is, that the English statute, as to the power of the judge in vacation, extends to any person who shall stand committed, or detained, as aforesaid, for any crime:
From the exceptions mentioned in the statute, it appears, that every person who is committed may apply for a habeas corpus, excepting such as,
1. Have been committed for treason or felony;
Persons convicted;
3. Those in execution by legal process.
The last of these exceptions has been satisfactorily examined and decided upon, by the supreme court, and the first requires no particular attention.
Mr. Tates, it has not been doubted, has been convicted of a contempt by the court of chancery. Whether that conviction was on competent or incompetent evidence; whether the party convicted was interrogated, or confessed the matter charged as a contempt, are not questions, which, in the purview of the habeas corpus act, were to be submitted or determined in vacation.
The restraining language of the statute, comprised in the exception, is as imperative, as if it had positively and expressly forbid the application for a habeas corpus. It is, it shall be lawful for such person, so committed, to apply for a habeas corpus, in vacation, unless convict, or in execution by legal process; in either of which tases, it shall not even be lawful to male application. Here the party is met, in limine, by the exception. If it is a case within the exception, how can a judge, in vacation, surmount it ? If the party convicted cannot even apply, how can he be relieved ?
Of the case of Puller, which it has been supposed I decided, I know nothing. I am satisfied, that if I ever decided a case of that kind, in vacation, it could not have been on the principle stated; and if it had been in term, I should have a note of it; which I have not. The chief justice, of whom I inquired on the subject, recollects no decision of the nature alleged to have been made by him.
One of the counsel has argued, with great zeal, to establish the position, that every chancellor, every judge of the supreme court, and every commissioner, possess an appellate jurisdiction, under all circumstances which can affect personal liberty, which he may exert, in vacation, on all and every conviction of every court of this state ; that if a prisoner can prevail upon any of those officers to discharge him, that discharge would be absolute and irreversible. If they have this power, it has some resemblance to the veto of the Roman tribunes ; but its exertion is, in every instance, to be preceded by trial, or confession and conviction; and in doing so, it has been said, that the discharging officer would be ancillary co the lav/.
Lei me, instead of reasoning on the subject, exemplify this singular doctrine, by briefly tracing its effects.
The supreme court, collectively, try, convict and adjudge» One of the judges, at the time of giving the
The chancellor may, in cases of capital convictions, stay execution, by allowing a writ of error, which operates as a supersedeas; the governor may, in that case, respite till the next meeting of the legislature, who may pardon, or give effect to the judgment; but if either the chancellor, a judge of the supreme' court, or commissioner can be found, who will say the conviction is illegal, the prisoner may be discharged, and irreversibly adjudged to be exempted from punishment.
If the discharge did not secure legal immunity, the bosom of the convict must be animated by the spirit and virtue of a Socrates, to resist the temptation of placing an insurmountable obstacle to a revision which could possibly affect him, by escaping to some place to which, the justice of this state could not be extended.
What possible reason can exist for applying to the chancellor, for the writ of error, to the governor for a respite, to the legislature for a pardon, if either a chancellor, a judge or a commissioner can, without having the record of conviction before him, without any assignment of errors; without notice to the attorney-general, and in the most summary way, at home, or abroad, with consideration or without, say, “ let him go,” and thus do away all the legal consequences of an indictment, trial, verdict, and judgment ?
As to the second point. In ordinary contempts, by openly insulting and resisting the powers of the court, no moral turpitude is involved; for they may have been the effect of irritation, of passion, or of insubordination*
The attachment contains a recital, “ that it appears from certain affidavits, that John V. N. Tates has been guilty of mal-practice and contempt.” To this it has been objected, that it does not appear that interrogatories have been exhibited, or, to state it in stronger terms, it appears that no interrogatories have been exhibited.
This point was not considered of such importance by the supreme court, as to attract much of its attention; but the imposing manner in which it has again been brought up requires that it should be particularly considered.
It has not been denied, that Mr. Tates had full notice of the complaint; that he was fully apprized of its being under examination; and it appears from the report, that he disregarded the notice. The first order was in the nature of a rule to show cause, the precise course which, in the argument, was indicated as the proper one. He 'had
None of the cases adverted to, show that interrogatories have ever been exhibited in any case of contempt, arising from mal-practice. The rule laid down by tíarr?sany Wyatt, and in other books of practice, both ancient and modern, is undoubtedly the general rule, as applied to cases arising in the regular prosecution of. a cause j but I much doubt its applicability to cases involving moral turpitude.
The examination of the question, whether the interposition of interrogatories is the right of the court, or of the party, may throw some light on the subject. If it is in the court, it would seem that it must rest in its discretion, for I shall show that it is not the practice to exhibit them in all cases of contempt, and under all circumstances. If in .the party, he must offer himself; for if the matter he seeks to be permitted to swear to, grows out of his defence, he is bound to show the point to which it is to be directed, and if he does not appear to make his defence, the court is certainly not bound to devise one for him.
The form of interrogatories show-that they are merely directed to establish facts, not to explain motives; and as all evidence must be presented to the mind through the medium of the senses, wherever a contempt is committed, in the view of the court, it is and has been the constant and uniform practice of every court, to commit on its own view, on the same principles on which they determine in cases of infancy and mayhem. Not a case has been cited, and I believe none exists, that in a case so circumstanced, interrogatories were ever filed. So if the party is brought up on a rule to show cause, and he confesses the contempt, why should he be less credited, than a traitor or a felon, whose confession has always been considered as a ground for adjudging him to-death.
Suppose the contemner had been brought up, in consequence of the affidavits alluded to, and he had con= fessed their truth, does not the recital precisely comport with that state of things ? Suppose the interrogatories exhi" bited and answered, and the court to be of opinion that %e answers admitted the truth of the affidavits, would not £he same result have been produced ? Would either one or the other have imposed, a change of phraseology to make it comport with truth ? In either case, the affidavits would have remained the basis of the conviction, and there is nothing inconsistent with either in the attachment. If we go beyond the record, as has been repeatedly done, in the course of the argument, for other purposes, we find the order taken by default; that the contemner was after-wards admitted to his defence; that every material circumstance, the filing the bill by him included, was uneontroverted, and that he only denied that it had been done without the consent of Peter W. Tates.
But there is another point, which has been treated by the counsel, as settled by the decision on the last question in this case, whether the writ of error ought to be quashed, which I consider of more interest to the community than any which has been discussed by them; and that is, whether the writ of error has brought the record to this court at all ? If it has not, then vain are all decisions on the questions which have been so ela.bcrately argued.
When the judgments of this court are rendered, in. its general course, few of the members give the reasons on which their opinions are founded. If they unite in principle, the reasons expressed are supposed to be those which governed the decision. But if the members who declare themselves in favour of such decision, adopt different principles, the effective reasons cannot be distinguished ; and if none of those assigned are such as can possibly apply to any other case, the decision must necessarily be narrowed down to the rule of the particular point decided,
The last adjudication of the court, in the case now again before us, might, and ought, under certain circumstances, to influence my judicial opinion in this. If I do not yield to its authority, a decent respect to the deciding tribunal requires that I should explain the reason why I deny it to be so. I shall, therefore, examine it as an adjudged case.
When I am required to submit to an authority, the reason on which it was established, the circumstances attending it, and the manner it was pronounced, are within the legitimate range of examination.
Sound law is tested by the rules of sound logic. If the predicates are false, truth cannot be deduced from them.
In treating this as an adjudged case, in the manner proposed, I may be permitted to observe, that two of
If, therefore, that decision is to be admitted as authority, it must be on one of two grounds.
1. That there is no adjudged case, to govern the point decided in it; or,
2. That if there are any, they are not to be regarded.
As to the first. The mind cannot be devested of the conviction, that the opinions expressed must be formed on some misapprehension, if it is possible to lay the finger on the very point, decided two centuries ago, in a book of high authority, compiled by one of the most distinguished sages of the law, whose common law learning was profound, whose accuracy is unquestioned, and. whose knowledge was derived from his own observation. If it is found that its correctness has been recognised, in every shape in which it has been judicially brought into view, in a long series of cases, which have been fully presented to the court, and which it cannot be necessary again to particularize, and its solidity attested by the acquiescence of ages, it cannot possibly yield to the assertion, that there is no adjudged case on the subject. If it is not possible to assent t© it, and so, I should have supposed, must have been the belief of every lawyer, till I found it thus doubted, it cannot constitute an authority to bind my judgment; the fact, in my opinion, being indubitably assumed, in the teeth of the most conclusive reporting evidence. If so, all deductions from a position so unsound, must be rejected, as untenable.
To follow the second of these opinions, it is indispensably necessary to possess the same ardour and intrepidity which dictated it; and I confess, in sober sadness, I cannot possibly aspire to either. My mind is shackled by the trammels of the constitution, my oath and the laws ; and I have still to learn that any object, however desirable, can justify a total disregard of the sacred obligations imposed by those, to me, insurmountable restraints.
The constitution has perpetuated, by express provision, such parts of the common law of England, as formed the law of the colony, on the 19th day of August.. 1775, subject to be altered by the legislature only ’.
The common law, before the art of printing was in-' vented, must have been, in a great measure, traditionary; and some learned men have supposed, that many of its principles were originally introduced, or sanctioned, bv statutes since forgotten ; but Blackstone, in his Commentaries, (53, 54.) says, that, at present, the monuments and evidences of our legal customs, are contained in the
If the opinion, now under examination, is to govern, all those invaluable monuments of the wisdom of antiquity, the volumes that contain them, and the maxims preserved in them, transmitted to us as an inheritance above all price, shielded by the provident care of the framers of our constitution, among whom were men as distinguished by their legal discernment, as capable of estimating the true value of the common law, as well acquainted with its tenets, as jealous of the liberties of the citizen, and well disposed to guard and perpetuate them, as any lawyers of the present day, are to be consigned to indiscriminate, interminable destruction ; and this solely by the uncontrollable power of this court. If this court can thus prostrate the common law, protected by what it is bound to deem the inviolable provisions of the constitution, it may, with as much ease, extend its irresistible arm, and by one tremendous blow, demolish the statute law with it.
It might, perhaps, be said, that the intent is not to destroy the common law, but only that the reporters should be rejected; but this is like wresting from a man his title deeds to a contested estate, and leaving him to a search for witnesses, who might, perad venture, be able to prove their former existence, purport and loss»
Bound to distribute justice according to the constitution and laws of the state, though this court might discover traits of excellence in other systems, dictated fay the benevolent views of a despot, or by the sublimated, theories of real or pretended patriots, who sometimes succeed m a free republic In identifying their opinion
I well know, that there have been occasions, when courts of supreme jurisdiction, under the influence of indignant feelings, in order to curb the proud oppressor, who, perhaps, with cool deliberation, had calculated the precise limit to which he might carry his extortions, and remain beyond the reach of the law; to wrest from the polluted hands of the man, who had been intrusted with the administration of justice, the fruits of venality and corruption, and to vindicate the purity of the principles
Could it be expected, that the pointed allusions to the tribunal which had directed the commitment, and the unqualified declaration, that a disproportionate punishment had been inflicted, calculated to 'degrade by imposing a submission and payment, in a case in which those allegations could not he examined, and to which they had no application, could be tacitly acknowledged as well directed; or that they would not thus be repelled, and the correctness of the commitment, on a ground on which it ought not to have been questioned in this case, as now before the court, vindicated ?
I shall only add, that the opinion delivered by me, on the motion for quashing the writ of error, I consider as fully meeting the case, as now presented ; that the court has no record here on which it can pronounce a judgment of reversal; that I hold the award of the remittitur a valid one, and that to conform to the shape to which this proceeding has been moulded, I am for an affirmance.
Clinton, Senator. We are now to give a final decision upon the merits of this interesting case. In forming our opinion, we cannot travel for facts beyond the record. Any statement of the proceedings which does not appear in the return of the supreme court, is not to enter into view; any moral or legal depravity attributed to the prisoner, beyond what appears in the case, or any justification, that may be offered in his behalf, or any allegations for, or against the court,'.ordering the commitment,
In giving an opinion on a case, in which such collision exists, I shall proceed with all that respectful deference» 30 justly due to the high judicial authorities of the state., and to the able and learned men who occupy them.
It appears that the prisoner was committed for a contempt of the court of chancery; that he was discharged by a judge on a habeas corpus^ recommitted by an order, and, again discharged; and that the case finally came before the supreme court, on a habeas corpusj who decided, “ that, the cause of commitment of the prisoner is good and suT ficieni in law to detain him in custody; and that, therefore, he be remitted to custody,” &c. The question before us is, whether this judgment of the supreme court is erroneous or not. In order to determine it with accuracy, it is necessary to consider the following points :
1. Whether the original commitment of the court of chancery was legal?
2. Whether a judge, in vacation, had jurisdiction in the case ?
3. Whether a person, discharged on a habeas corpus can be reimprisoned for the same offence ?
4. Whether the commitment by order of the court, and not by attachment, is legal ?
As to the legality of the original commitment, it is objected; 1.. That the prisoner was committed for a crime; 2. Without being examined on interrogatories; and, 3. Without a definite, or terminable period, prescribed in the conviction.
The attachnaent recites the order of commitment, which states, that it appeared from several affidavits-, that the prisoner had, while a master in chancery, filed a bill and subscribed the name of a solicitor, without his knowledge or consent, and had acted as solicitor, in the said cause, in the name of such solicitor, “ contrary to the statute in such case made and provided, in wilful violation of his duty, as a master, and in contempt of the authority of this court;” and it was thereupon ordered, “ that he bé committed for his said mal-practice and contempt, to the common gaol of the city and county of Albany, there to retiiain until the further' order of the court.”
The ninth section of the act concerning counsellors, ^attorneys, and solicitors, directs, “ that no clerk, deputy-clerk, register, or deputy-register of any court, nor any examiner, or master of chancery, shall act as counsellor, attorney or solicitor, in any action or matter in the same court.” A violation of this provision is undoubtedly a misdemeanor, and ns such indictable. The chancellor supposed, that the .prisoner had violated the statute. The whole order is founded on his filing a bill in the-name of another solicitor, without his consent, and acting as, a solicitor in such cause. This act is stated t© be against the statute, in violation of his duty, as master, and in contempt of the authority of the court > the fact
The prohibition against certain officers of the courf from practising in it, was to maintain purity and impar, tiality, by preventing them from interfering, ministerially, or judicially, in cases, in which they were employed by one of the parties. A master in chancery would be, indeed, an improper officer to report on a reference made in a cause, in which he felt the bias of a solicitor qy counsellor. Whether he practises in his owti name:
Now the very statement of the case precludes all idea of agency. It was done without the consent or knowledge of Peter W. Tates. The prisoner did not, indeed, act, directly, as solicitor in his own name, but he acted indirectly, as solicitor, in the name of another; and this comes with more force within the- mischiefs contemplated by the statute, than a direct and open assumption, “ The act (continues the chief justice) intended to render that practice unlawful, which was lawful before. Practising in the name of another solicitor was always mal-practice, and punished as such by the courts. It is a fraud practised both upon the solicitor and the court, and there is no need of a statute prohibition. If such conduct was within one of the mischiefs that the statute had in view, the power of the courts was adequate to meet and redress it. If the statute does in fact reach this case, it is so far a declaratory provision, and pey
The proceedings in chancery are, according to the course of the civil law, without grand or petit juries, and therefore the chancellor cannot take cognisance of crimes. If he proceeded against the prisoner for a statutable offence, and he declares that he did, he transcended his jurisdiction, and the conviction is. unquestionably illegal. Our constitution declares, “ that trial by jury, in all cases in which it hath heretofore been used in the colony of New-York, shall be established and remain inviolate for ever.” The trial by jury existed in the colony, in all criminal cases; and if the chancellor was permitted to punish for this violation of a statute, the prisoner would be rendered liable to two punishments for the same offence; for in a prosecution in a
Considering this conviction, however, as composed of different ingredients, as of a mixed amphibious character, as comprising a contempt and a statutable offence, mal-practice, and a violation of official obligation, it is evident that the chancellor has undertaken to try a contempt which he can try, and a statutable offence which he cannot try; to mingle legitimate and illegitimate subjects together, and to apply one indivisible punishment to the whole. The case of The King v. Collyer and Capon, (Sayers Reports, 44.) is a case in point. The defendants were sentenced by a court of quarter sessions to .be imprisoned one month, to ask pardon on their knees, and to publish an account of the sentence in the newspapers. On a habeas corpus, they were discharged by the court of K. B. because the conviction, was illegal, in prescribing two of three punishments not authorized by law. The prfesent case is a stronger one; for if a conviction is illegal in prescribing a punishment not authorized, it must, a fortiori, be illegal, if a court not empowered to take cognisance of the crime, should, nevertheless, assume it, and punish accordingly. In the latter case, the proceeding was unwarrantable from its inception ; in the former only in its termination.
I, therefore, conceive this branch of the subject, free from the least scintilla of doubt, and from the least shade of obscurity. I consider it as the strongest and ' lirmest ground on which the prisoner stands. And so considering it, I might here rest the investigation of the remainder of this, and the three subsequent points, and proceed immediately to the last point. But considering die magnitude and importance of the question, I shall treat it in the manner I originally proposed.
The second objection taken to the legality of the con^
The remaining objection to the legality of the commitment is, that it is not definite and terminable, either by the effluxion of time, or on the doing of some act by the prisoner.
In the case ' of summary - convictions, the offender ought not to be put in a worse situation, as to the duration of the punishment, than if he had enjoyed the benefit of atrial by jury; and a conviction in the latter case, unlimited as to the period of confinement, would be relieved against by habeas corpus, or reversed on a writ of error. This power in the English courts of committing during pleasure, seems to have been borrowed from the indefinite and omnipotent privileged claimed by the lords and commons; but even in commitments by either house of parliament, as well as by our senate and assembly, the imprisonment ceases
2, S. The second and third points suggested- for inquiry, áre, whether a judge, under the habeas corpus act, Had cognisance of this case; and whether a reimprisonmefit under the habeas corpus act was justifiable ? As these two points are intimately blended together, I shall consider them conjunctly.
It is contended, that the judge usurped a jurisdiction: not given him by the statute; and that, therefore, his decision was null and inoperative,, being comm non judice-
Our statute differs from the English,-not only in phraseology, but in this important respect, that a judge may take cognisance of the case of any person imprisoned,whereas in England, he is confined to persons committed
If, then, the judge had jurisdiction in the cause, whether kc decided erroneously or not is now immaterial,
. 4. Whether the recommitment by the court of chancery, by order, and not by attachment, is legaL
If the original commitment was illegal, the supreme court ought to have discharged the prisoner; or. if a re-imprisonment was contrary to law, or if a commitment by an order, instead of an attachment, is unwarrantable ; in either of these cases, there can be no doubt but that they ought to have interposed in his favour, unless it can be shown, that legal impediments exist; and it is pretended that courts will not interfere with commitments of tribunals of coordinate or superior jurisdiction, particularly with convictions for contempts, and by the remedy of a habeas corpus. '
The chancellor has, in effect, and to a certain extent,, given up this ground. He says,
It was originally held, that a court could not relieve, in any case, by habeas corpus, until the conviction was quashed, or reversed, by a wxfit of error. Before the habeas corpus act, the celebrated case of Bushell occurred; he was fined, as a juror, for giving a verdict contrary to law, contrary to full and manifest evidence, and contrary to the direction of the court, in matter of law, by the commissioners of oyer and terminer; and was comoiifr
“ 1. The prisoner is to be discharged^ or remanded, barely upon the return, and nothing else, whether in the king’s bench, or common pleas.
“ 2. Should the king’s bench have the order of commitment certified and quashed, before the return of the habeas corpus, or after, what will it avail the prisoners ? they cannot plead nul tiel record in the one case or the other.
“ 3. In all the precedents shown in the common pleas, or in any that can be shown in the king’s bench, upon discharging the prisoner, by habeas corpus, nothing can be shown of quashing the orders, or decrees of that court that made the wrong commitment.
u 4. It is manifest, where B. R. hath, upon habeas corpus, discharged a prisoner committed by the chancery, the person hath again been recommitted, for the same cause, by the chancery, and redelivered by B. R. but no quashing of the chancery order ever heard of.
“ 5. In such cases of recommitment, the party hath other and proper remedy besides a new habeas corpus, of which I shall not speak now.
“ 6. It is known, that if a man recover in assise, and after in a redisseisin, if the first judgment be reversed in the assise, the judgment in the redisseisin is also reversed. So if a man recover in waste, and damages given, for which debt is brought, (especially if the first judgment be reversed before execution,) it destroys the process for the damages in debt, though by several originals. But it may be said, that in a writ of error of this kind, the foundation is destroyed, and no such record is left. But as to that in Drury’s case, (8 Co.
This opinion of the court settled the law on the question, whether the court would relieve, by habeas corpus, the conviction not being first quashed" or reversed: "and it is deserving of attention, not only for its importance, but for the great learning and talents it displays. It took place before the habeas corpus act, when the habeas corpus was not considered a writ of. right, and in the common pleas, which has no jurisdiction over crimes, and which could not, o£ course, quash the conviction." The" prisoner was discharged, leaving the judgment unreversed. The great stress which has been laid upon relieving against the execution by habeas corpus, and still leaving the conviction or judgment untouched, must now be for ever put at rest; and all the chimerical speculation built upon it, must vanish into thin air. The courts in England, have "followed this parent case, and I think, that they have generally adopted the following rule: Where the" conviction is substantially wrong, they relieve in a summary way by habeas corpus; where formally or technically wrong, they put the party to his certiorari, or writ of error.
The court put the party to his writ of error, saying that where a commitment was without cause, a prisoner may be delivered by habeas corpus; but where there appears to be good cause, and a defect only in the form of commitment, as in this ease, he ought not to be discharged. And the court said, that before BushelPs case, no man was ever delivered by habeas corpus, without writ of error, from a commitment of a court of oyer and termbieiy
In the case of Rex v. Chandler, (1 Ld. Raym. 545.) on a habeas corpus, brought to discharge a prisoner from custody, on an illegal commitment by two justices of the peace, upon a conviction, under the act against deer-stealing, he was discharged. An objection was started by counsel, that the conviction ought to be quashed, before the prisoner could he discharged, for the execution is good until the judgment be reversed. This was overruled. Molt, Chief Justice, referred to BushelPs case, where the jury were fined, and were committed in execution for it in court; that this was a judgment, and yet he was discharged on habeas corpus, in C. B.
In Crawley's case, (Cro. Car. 567.) in B. R. it appeared that he wag committed to gaol by two justices, until he should obey an order of taking, the office of constable on him. The court held that he was unjustly committed, and discharged him on habeas corpus.
The court of B. R. in England, is the only one of the four great courts which has criminal jurisdiction, and it does not appear, that the case ever came up where there
Although the courts of Westminster Hall have not been called upon to review each other’s commitments for contempts, persons imprisoned by the peers and commons have endeavoured to obtain the benefit of the writ of habeas corpus. The case of The Earl of Shaftsbury, (2 State Trials, 615. 1 Modern, 144.) who was committed by the house of lords for high contempts against it, and during his majesty’s pleasure, and the pleasure of the house $ and the case of The Queen v. Paty and others, (2 Salk. 894. 2 Ld. Raym. 1005.) show that the B. R. would not relieve in this way against either house of parliament, as does also the case of Crosby. (3 Wils. 188. 2 Bl. Rep. 754.) The true reason was the undefined and omnipotent privileges of parliament; and the judges did not probably dare in those times of turbulence to encounter the vengeance of that body. In the case of Paty and others, Chief Justice Holt protested against
As the question now stands before this court, the objection that the discharge was made by a judge in vacation, vanishes. The question is, whether the supreme court, which is admitted to be a competent tribunal, ought not to have discharged him in term; and the only objection now must be, that in all other cases, except those of con-tempts* relief will be granted against unjust imprison
The present case is one of that description. The prisoner was committed for a statutable offence ; it so appeared on the return of the attachment. The supreme court refused to grant relief against the plain intimationi of Chief Justice De Grey, who would undoubtedly have done it in a similar case.
Upon a view of the whole óf this important and complicated question, I am fully of opinion that the supreme court decided erroneously, and that their judgment ought to be reversed.
. A majority of the- Senators being of the same opinion, it was thereupon ordered and adjudged, that the judgment of the supreme court be reversed.
c( Pleas,” fee.
{t Be it remembered, that, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and ten, the transcript of the within record and process between the parties aforesaid, of the plea aforesaid, within, mentioned, with all things touching the same, by virtue of a certain writ of error prosecuted in the premises within mentioned by the said John V. N. Tates, were transmitted from the supreme court of judicature of the state, before the court here for the correction of errors; and the aforesaid John V. If. Tates appearing by his counsel in the same court here for the correction of errors, on the fifteenth day of March, in the year aforesaid, did assign certain matters for errors in the within record and process aforesaid, for reversing and annulling the judgment aforesaid of the said supreme court of judicature, in the words following, to wit:
Afterwards, that is to say, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and ten, before the court for the trial of all impeachments and correction of errors, comes the said John V. If. Tates, by Daniel Rodman, his attorney, and says, that in the record and proceedings aforesaid, and also in the giving of judgment aforesaid, there is manifest error in this, to wit, that by the law of the land, the said John V. If. Tates ought to have been discharged from the order of the court of chancery on which he was arrested and is now imprisoned, and ought not to have been remitted. In this, therefore, there is manifest error. There is also error in this, that judgment in that behalf was given against the said John V. If. Tates,
Whereupon the said court for the correction of errors, • after hearing the reasons assigned by the justices of the supreme court for their judgment, and the counsel for the said John F. N. Tates, did assign the twenty-seventh day of March, in the year aforesaid, for the judgment of the said court, now here; and then and there did, after' mature consideration of the errors assigned, order and adjudge, and the said court now here doth order and adjudge, that the judgment of,the supreme court, adjudging the cause of the commitment of the said John V. N. Tates to the custody of the sheriff of the city and county of Albany, in the return of the said sheriff specified to be good and sufficient in law to detain the said John F. A7". Tates in the custody aforesaid, be, and the same is reversed. And it is further ordered and adjudged, that the cause of the commitment of the said John F. N. Tates to the custody of .the sheriff of the' city and county of Albany, in the return of the said sheriff" specified, is insufficient in law to detain the said John F. N. Tates in the custody aforesaid. And it is further ordered, that the transcript of the record herein, with the judgment aforesaid thereon given, and all things touching the same be remitted into the supreme court, where such farther proceedings shall be thereupon had, for the deliverance of the said John F. N. Tates from the custody aforesaid, as may be agreeable to law and justice.
Judgment of reversal.
Thera were for the affirmative 12, for the negative 16.
2 Saund. 1 Mod. 271. S. C. 2 Keb. 711. 1 Hale's P. C. 681. Mosely, 238. 1 Atk. 57.
1 Atk. 57.
The words kings subjects are omitted, in our statute of 1787, and the word persons, inserted in their stead ; and tlie.otber words in italics are aiso omitted.
See the printed case of Yates, p. 96, 97.
As no other members of the court assigned their reasons, hut ánswéré'tí simply in the affirmative or negative,-1 have considered the majority, who were of opinion that the judgment of the supreme court ought to be reversed, as concurring on all the grounds expressed in the opinion above delivered ; imd have, accordingly, so stated tice points as decided ih the cause,,, in the marginal note, pp, 337, 338.
March 6th.