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

by Baron John Campbell Campbell

We must maintain the rights of the State and its courts, for to them alone can the people look for a competent administration of their domestic concerns; but we will do nothing to impair the constitutional vigor of the general government, which is “the sheet anchor of our peace at home and our safety abroad.”

Some complaint was made in the argument about the sentence being for an indefinite time. If this were erroneous it would not avail here, since we have as little power to revise the judgment for that reason as for any other. But it is not illegal nor contrary to the usual rule in such cases. It means commitment until the party shall make proper submission. (3 Lord Raymond, 1108. 4 Johns. Rep. 375.)

The law will not bargain with anybody to let its courts be defied for a specific term of imprisonment. There are many persons who would gladly purchase the honors of martyrdom in a popular cause at almost any given price, while others are deterred by a mere show of punishment. Each is detained until he finds himself willing to conform. This is merciful to the submissive and not too severe upon the refractory. The petitioner, therefore, carries the key of his prison in his own pocket. He can come out when he will, by making terms with the court that sent him there. But if he choose to struggle for a triumph—if nothing will content him but a clean victory or a clean defeat—he cannot expect us to aid him. Our duties are of a widely different kind. They consist in discouraging as much as in us lies all such contests with the legal authorities of the country. The writ of habeas corpus is refused.

No. IV.

The dissenting opinion of Judge Knox in favor of granting the petition.

Knox, J. I do not concur in the opinion of the majority of this court refusing the writ of habeas corpus, and shall state the reasons why, in my judgment, the writ should be granted.

This application was made to the court whilst holding a special session at Bedford, on the 13th day of August; and upon an intimation from the counsel that in case the court had any difficulty upon the question of awarding the writ, they would like to be heard, Thursday, the 16th of August, was fixed for the hearing. On that day an argument was made by Messrs. Meredith and Gilpin, in favor of the allowance of the writ.

I may as well remark here, that upon the presentation of the petition I was in favor of awarding the habeas corpus, greatly preferring that the right of the petitioner to his discharge should be determined upon the return of the writ. If this course had been adopted, we should have had the views of counsel in opposition to the discharge, and, moreover, if necessary, we could, after the return, have examined into the facts of the case.

I am in favor of granting this writ, first, because I believe the petitioner has the right to demand it at our hands. From the time of Magna Charta the writ of habeas corpus has been considered a writ of right, which every person is entitled to ex debito justiciæ. “But the benefit of it,” says Chancellor Kent, “was in a great degree eluded in England prior to the statute of Charles II., as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it.” 2 Kent Commentaries, 26. And Bacon says, “Notwithstanding the writ of habeas corpus be a writ of right, and what the subject is entitled to, yet the provision of the law herein being in a great measure eluded by the judge as being only enabled to award it in term time, as also by an imagined notion of the judges that they had a discretionary power of granting or refusing it,” the act of 31 Charles II. was made for remedy thereof.

I am aware that both in England and this country, since the passage of the statute of Charles II., it has been held that where it clearly appeared that the prisoner must be remanded, it was improper to grant the writ; but I know of no such construction upon our act of 18th February, 1785. The people of the United States have ever regarded the privileges of the habeas corpus as a most invaluable right, to secure which, an interdiction against its suspension, “unless when in cases of rebellion or invasion the public safety may require it,” is inserted in the organic law of the Union; and in addition to our act of 1785, which is broader and more comprehensive than the English statute, a provision in terms like that in the constitution of the United States is to be found in the constitution of this State.