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

by Baron John Campbell Campbell

Some of these cases decide that the act of a court without jurisdiction is void; some, that the proper remedy for an imprisonment by a court having no jurisdiction is the writ of habeas corpus; and others, that it may issue from a state court to discharge a prisoner committed under process from a federal court, if it clearly appears that the federal court had no jurisdiction of the case; altogether, they establish the point that the petitioner is entitled to relief, if he is restrained of his liberty by a court acting beyond its jurisdiction.

Neither do I conceive it to be correct to say that the applicant cannot now question the jurisdiction of the judge of the district court because he did not challenge it on the hearing. There are many rights and privileges which a party to a judicial controversy may lose if not claimed in due time, but not so the question of jurisdiction; this cannot be given by express consent, much less will acquiescence for a time waive an objection to it. (See U. S. Digest, vol. i. p. 639, Pl. 62, and cases there cited.) It would be a harsh rule to apply to one who is in prison “without bail or mainprize,” that his omission to speak on the first opportunity forever closed his mouth from denying the power of the court to deprive him of his liberty. I deny that the law is a trap for the feet of the unwary. Where personal liberty is concerned, it is a shield for the protection of the citizen, and it will answer his call even if made after the prison door has been closed on him.

If, then, the want of jurisdiction is fatal, and the inquiry as to its existence is still open, the only question that remains to be considered is this: Had the judge of the district court for the eastern district of the United States power to issue the writ of habeas corpus, directed to Passmore Williamson, upon the petition of John H. Wheeler? The power of that court to commit for a contempt is not denied, and I understand it to be conceded as a general rule by the petitioner’s counsel, that one court will not reëxamine a commitment for contempt by another court of competent jurisdiction; but if the court has no authority to issue the writ, the respondent was not bound to answer it, and his neglect or refusal to do so would not authorize his punishment for contempt.

The first position which I shall take in considering the question of jurisdiction, is that the courts of the United States have no power to award the writ of habeas corpus except such as is given to them by the acts of Congress.

“Courts which originate in the common law possess a jurisdiction which must be regulated by the common law; but the courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend their jurisdiction. The power to award the writ by any of the courts of the United States must be given by written law.” Ex parte Swartout, 4 Cranch, 75. Ex parte Barre, 2 Howard, 65. The power of the United States to issue writs of habeas corpus is derived either from the fourteenth section of the act of 24th September, 1789, or from the seventh section of the act of March 2, 1833.

The section from the act of 1789 provides that “all the courts of the United States may issue writs of scire facias, habeas corpus, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And either of the justices of the supreme court, as well as the judges of the district courts, may grant writs of habeas, for the purpose of inquiry into the cause of commitment; but writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” The seventh section of the act of 2d March, 1833, authorizes “either of the justices of the supreme court, or judge of any district court of the United States, in addition, to the authority already conferred by law, to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by authority of law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof, any thing in any act of Congress to the contrary notwithstanding.”

Now, unless the writ of habeas corpus issued by the judge of the district court was necessary for the exercise of the jurisdiction of the said court, or was to inquire into a commitment under, or by color of the authority of the United States, or to relieve some one imprisoned for an act done, or omitted to be done, in pursuance of a law of the United States, the district court had no power to issue it, and a commitment for contempt in refusing to answer it is an illegal imprisonment, which, under our habeas corpus act, we are imperatively required to set aside.

It cannot be pretended that the writ was either asked for or granted to inquire into any commitment made under or by color of the authority of the United States, or to relieve from imprisonment for an act done or omitted to be done in pursuance of a law of the United States, and therefore we may confine our inquiry solely to the question whether it was necessary for the exercise of any jurisdiction given to the district court of the United States for the eastern district of Pennsylvania.

This brings us to the question of the jurisdiction of the courts of the United States, and more particularly that of the district court. And here, without desiring, or intending to discuss at large the nature and powers of the federal government, it is proper to repeat what has been so often said, and what has never been denied, that it is a government of enumerated powers, delegated to it by the several States, or the people thereof, without capacity to enlarge or extend the powers so delegated and enumerated, and that its courts of justice are courts of limited jurisdiction, deriving their authority from the constitution of the United States, and the acts of Congress under the constitution. Let us see what judicial power was given by the people to the Federal government, for that alone can be rightly exercised by its courts.

“The judicial power” (says the second section of the third article) “shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority, to all cases affecting embassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, to controversies between two or more States, between a State and citizen of another State, between citizens of different States, between citizens of the same State, claiming lands under grants of different States, and between a State, or the citizen thereof, and foreign States, citizens or subjects.”