Ex parte Davis , 7 F. Cas. 45 ( 1851 )

CONKLING, District Judge.

An order nisi having been granted by me several days ago, for a writ of habeas corpus ad subjiciendum, to bring before me the body of John Davis, for the purpose of inquiring into the legality of his confinement, in the custody of one of the deputy marshals of this district, and the case having been fully argued by counsel, and considered by me, I am now to declare my opinion of the law thereupon.

The case is one in its nature, calculated, as we know, by recent experience, to arouse the passions and prejudices of men in this part of the Union; and this tendency, in the present instance, has been unhappily inflamed by an extraordinary incident reported to nave attended the original arrest of the petitioner. But the circumstances to which I have alluded, however deplorable, it is scarcely necessary to observe, can have no legitimate influence whatever upon the decision of the question before me, and are to be remembered, if at all, only for the purpose of inspiring a deeper sense of judicial duty, and greater caution in its discharge. If the prisoner is entitled by law to the privilege of the writ of habeas corpus, it must be awarded; if not, it must be withheld; and in neither event can the result afford any just ground for dissatisfaction, still less any apology for the indulgence of a spirit of insubordination to the laws of the land. It is proper, at the outset, to observe that, as I hoped and expected, when the order nisi was made, the merits of the case are now as fully before me as they could be on the return of a writ of habeas corpus, should one be granted. The real question to be decided, therefore, is, whether the petitioner is entitled to his discharge; for it is an obvious as well as an established rule that when, upon an application for a habeas corpus, it appears that it would be fruitless to the petitioner if allowed, it is not to be granted.

Before proceeding to an examination of the merits of this application, it may not be amiss to advert to the source of the power which I am. called upon to exercise. The government of the United States is one of expressly delegated powers, and its functionaries can exercise no authority except such as, either in terms or by reasonable in-tendment, has been conferred by the constitution, or by laws passed in accordance therewith. To guard against possible restrictions of the great privilege of habeas corpus, it was deemed expedient, by an express provision of the constitution, to forbid its suspension, unless when, in case of rebellion or invasion, the public safety might require it.. -With this exception, it was left, as one of the elements or incidents of the judicial power, to be regulated by law; and in order to give it -vitality, it was necessary for congress to confer the power to grant it, and to designate the functionaries by whom -this power Should be exercised. This was done by the 14th section of the judiciary act of 1789, which, as it has been authoritatively interpreted, invests all the courts of the United States, and the several judges thereof, with the power •to issue this writ, “for the purpose of inquiring into the cause of commitment” The act does not prescribe the cases in which this form of remedy may be resorted to, nor does it define the power of the court or judge in cases where it lies. Recourse for these purposes must therefore be had to the common law, and especially to the celebrated habeas corpus act of 31 Car. II., designed to correct and effectually guard against the scandalous evasions and abuses by which the practical -efficacy of the writ of habeas corpus had become in a great degree destroyed during the -arbitrary reign of the Stuarts. 3 Bl. Comm. 130-138; Ex parte Bollman, 4 Craneh [8 U. S.] 75; 2 Cond. Eng. Ch. 33; Ex parte Watkins, 3 Pet. [28 U. S.] 193, 201, 202. His honor examined at length the authorities cited at the argument, and especially the cases Ex parte Kearney, 7 Wheat. [20 U. S.] 38, and Ex parte Watkins, 3 Pet. [28 U. S.] 193, —“the latter being mainly relied on by the -counsel for the claimant,”—and which establish the principle that when, .by a court of competent jurisdiction, a judgment, in its nature final, has once been pronounced, it •cannot be reviewed on habeas corpus; and he then proceeded as follows:

It is upon this principle that the claimant relies, and the question is, whether or not it furnishes the rule of decision for the present ease. For the purpose of determining this question, it is proper to examine into the nature of the adjudication which it is proposed to bring under review. The adjudication was made by one of the commissioners of the United States, for this judicial district. The office of commissioner was created by an act of congress, passed in 1812 [2 Stat. 679], by which the several circuit -courts were authorized to appoint suitable presons to take acknowledgments of bail and affidavits, in civil causes depending in such courts; -and by an act passed a few years later, the persons so appointed were authorized to perform the like services in causes in the' district courts. By this latter act, and other ■ acts, subsequently passed, other powers were ■ successively conferred upon these officers; and lastly, by the first section of the act of September IS, 1830, known as the “Fugitive Slave Act,” they are “authorized and requir- • ed to exercise and discharge all the powers and duties conferred by this act.” The fourth section further declares that the commissioners “shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, in their respective circuits and districts.” By the sixth section it is also enacted that the certificates to be granted under the act “shall be conclusive of the right of the person in whose favor granted, to remove such fugitive to the state or territory from which he escaped, and shall prevent an molestation of such person or persons, by any process issued by any court, judge, magistrate, or other person whatsoever.” Now whatever ground for doubt, if any, might have existed, independently of this enactment, concerning the legal force and effect of these certificates, it may, I think, be safely assumed that it was intended by congress to place them, in this respect substantially on the footing of judgments rendered by judicial tribunals, in bases within their jurisdiction. But notwithstanding the wide scope of the doctrine laid down by the supreme court in the Watkins Case, I am also of opinion, and indeed this was distinctly admitted by the learned and able counsel who appeared for the claimant, that this conclusive effect can be ascribed to a certificate only when it appears on its face that it was granted, or, at least, according to some reasonable interpretation of its language, might have been granted, in conformity with the act, and in pursuance of the authority thereby conferred. Unquestionably it should appear to- have been granted by a person having power to grant it, and proceeding in a manner warranted by the act It is only to such certificates that the principle of law relied on by the counsel for the claimant can be applied, and such only can congress be presumed to have had in view. I regret that the circumstances of the case, and my own indispensable engagements, requiring my immediate departure to a remote part of the district, preclude me from fortifying and elucidating this proposition, and reconciling it with the case Ex parte Watkins, by a reference to authorities. But I shall assume it as unquestionable. The counsel for the petitioner denies that the certificate now in question is of this character. One of the objections to its sufficiency is that the person by whom it was granted is therein described as “a commissioner appointed by the second circuit court,” and as “a commissioner appointed by the circuit court for the second circuit,” when in truth there is no such court, and, of course, no such commissioner. The objection is true in point of fact, and if there was not another, of a more serious nature, this would, at least, require consideration. -But it is further objected that the case of the petitioner is not embraced by the act, or rather by that part of it under which the proceeding was entertained, and by which alone it could have been authorized. It is due to the highly respectable gentleman, by whom the certificate was granted, to observe that this objection appears not to have been made before him, and probably it was not thought of by him, or, until afterwards, by the counsel for the petitioner. The claimant saw fit to avail himself of the provisions of the 10th section of the act, by which the owner of a fugitive slave is permitted to make proof of the main facts of title and escape before a court of record, or some judge thereof, in the state whence the escape was made; and -having obtained a transcript of the record, which such court is required to make, of the matters so proved, to exhibit the same to the judge or commissioner, to whom application shall be made, in the state where the fugitive shall be found, as conclusive evidence of the facts therein stated. Such a record was produced before the commissioner, in the present case, and is distinctly stated, in the certificate, to have formed the basis of his action in the premises.

It was suggested at the argument, though apparently with no great confidence, that the commissioner might, by possibility, have had other competent evidence before him; but I am clearly of opinion that no such supposition is admissible. There is not, in the papers before me, the slightest intimation to this effect, but, on the contrary, .the transcript is exclusively referred to throughout as the evidence by which the title of the claimant and the fact of escape were established. But the escape is also throughout alleged to have occurred “on or about the 25th day of August, 1850,” whereas, the act was not passed until the 18th of September following; and it is upon these dates that the objection is founded. The language of the 10th section of the act is this: “And be it further enacted, that when any person held to labor or service, in any state or territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor is due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof,” &e. Now it is insisted that this provision is clearly prospective, and therefore inapplicable to the case of an escape from labor or service, occurring before the passage of the act; and such, I am constrained to say, appears to me to be the plain sense of the enactment. It was argued by the counsel for the claimant that, this being a remedial act, it is to be so construed as to suppress the mischief, and advance the remedy; and that, if it can be reasonably inferred from its whole tenor that the provision in question was designed to act retrospectively, it is to be so interpreted. But when the language of a statute is unambiguous, and leads to no absurdity or palpable injustice, it is to be interpreted according to its natural import It may be conceded that the legislative intent imported by the words used might have-been more explicitly declared, by the addition, immediately after the word “shall,”of the word “hereafter,” or of the words “after the passage of this act;” but it cannot, I think, be maintained that this intent is not unequivocally expressed by the word “shall” alone. If I were permitted, however,, to look beyond the terms of the provision itself, and to speculate upon its probable design, I am unable to perceive that the result would be varied. The only other part of the act specifically referred to by the counsel for-the claimant, for the purpose of shedding light upon that under consideration, is the beginning of the sixth section, which provides for a different mode of establishing the facts of title and escape. The words here are: “That if a person held to service or labor in any state or territory of the United States, has heretofore, or shall hereafter escape,” &e. The argument is that it is manifest from this language that congress intended to provide for cases of prior as well as subsequent escape. There can be no-doubt of this, so far as the provisions of this section are concerned. But it is to be considered that the 10th section introduced a most important innovation upon the law as it was before the passage of the act. It authorizes an ex parte application to a court or judge, to be selected by the claimant, in the absence of, and without notice to, the party to be affected by the proceedings, to-determine questions of fact, involving his freedom or servitude for life, and declares the decisions of such court or judge to be full and conclusive evidence of the facts decided, and therefore binding upon the judgment and conscience of the court, judge, or commissioner in any other state, before whom the alleged fugitive may be reclaimed. It is not my province to express any opinion upon the reasonableness of this great innovation. It must be conceded that there were not wanting strong and justifiable motives for its enactment, and it is sufficient, for those whose duty is is to execute it, that congress have seen fit to adopt it But it may, I think, well be supposed, that in deference to the spirit of the great principle of natural justice and constitutional law, which forbids the enactment of ex post facto laws, it was intentionally limited to cases of escape from servitude, thereafter to occur; and this inference, I am of opinion, is rather strengthened than weakened by the retroactive phraseology employed in the 6th section. The liability of this provision to abuse is too ob■vious to escape notice, and it is worthy of observation that in the present case, as it appears by the record of the Kentucky court, instead of requiring the personal attendance of the witnesses of the claimant, the court saw fit, in the discharge of the grave and responsible duty imposed upon it by the act, to receive affidavits, and to act upon them alone, although the deponents are described as residents of the city of Louisville, where the court was held. It may well be that these witnesses were credible persons, able, from their own knowledge, to attest to all the facts requisite fully to warrant the decisions of the court, and that a careful cross-examination would have elicited no other facts favorable to the petitioner; but conceding that the evidence before the court might lawfully be held by it to constitute the “satisfactory proof” required by the act, the opposite course of procedure would, to say the least, have been more consonant with the established, and, as I had supposed, universally recognized principles of enlightened jurisprudence. I am, therefore, also of opinion that it is my duty to apply to this enactment the same rule of construction that is applicable to penal statutes. “It was,” says Professor Christian, “one of the laws of the twelve tables of Home, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted, in the construction of penal statutes; for whenever any ambiguity arises in a statute, introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favor of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favor of the subject. And though the judges, in such cases, may frequently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result, than that the law remains as it was before the statute. And it is more consonant to principles of liberty that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity.” 1 Bl. Comm. 88, note 19.

The result of this examination then is that, though the evidence on which alone the commissioner founded his adjudication would have been sufficient and conclusive in a case arising after the passage of the act, it was wholly inapplicable to a case like the present, arising before the passage of the act In other words, as appears on the face of the certificate itself, the adjudication was made without evidence, and the only question is whether this great error, arising, I have no doubt, from inadvertence, can be corrected on habeas corpus. I think it may, and that it is my duty to do it If, as has been said, “A good warrant is a good cause of detention,” the converse of the proposition is not less true. I shall accordingly allow the writ, but it must be made returnable before me at the court-house, in Buffalo, at two o’clock p. m., to-morrow.