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

But, says the opinion of the majority, he was convicted of a contempt of court, and we will not look into the record to see how the contempt was committed. I answer this by asserting that you cannot see the conviction without seeing the cause: 1, the petition; 2, the writ and the alias writ of habeas corpus; 3, the return; and 4, the judgment.

“It is ordered and adjudged by the court that the said Passmore Williamson be committed to the custody of the marshal without bail or mainprize, as for a contempt in refusing to make return to the writ of habeas corpus heretofore issued against him at the instance of Mr. John H. Wheeler.” As I understand the opinion of a majority of my brethren, as soon as we get to the word contempt the book must be closed, and it becomes instantly sealed as to the residue of the record. To sustain this commitment we must, it seems, first presume, in the very teeth of the admitted fact, that these were runaway slaves; and second, we must be careful to read only portions of the record, lest we should find that the prisoner was committed for refusing to obey an unlawful writ.

I cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the State. While in contests involving the right of property merely, I presume we may still treat these judgments of the United States courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to pronounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment pronounced by a court of competent jurisdiction, acting within the admitted sphere of its constitutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the Court of Queen’s Bench in England, and this upon the authority of decisions pronounced in cases not at all analogous to the one now under consideration. I believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of habeas corpus to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ should be awarded.

1. At common law, and by our statute of 1785, the writ of habeas corpus ad sufficiendum, is a writ of right, demandable whenever a petition in due form asserts what, if true, would entitle the party to relief.

2. That an allegation in a petition that the petitioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue.

3. That where a person is imprisoned by an order of a judge of the district court of the United States for refusing to answer a writ of habeas corpus, he is entitled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of habeas corpus by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction.

5. That the courts of the federal government are courts of limited jurisdiction, derived from the constitution of the United States and the acts of Congress under the constitution, and that when the jurisdiction is not given by the constitution or by Congress in pursuance of the constitution, it does not exist.

6. That when it does not appear by the record that the court had jurisdiction in a proceeding under our habeas corpus act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a rule for a habeas corpus, all the facts set forth in the petition tending to show want of jurisdiction are to be considered as true, unless they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a slave to a free State, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the State into which he is thus brought.

9. That if a slave so brought into a free State escapes from the custody of his master while in said State, the right of the master to reclaim him is not a question arising under the constitution of the United States or the laws thereof; a judge of the United States cannot issue a writ of habeas corpus directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge.

10. That the district court of the United States for the eastern district of Pennsylvania has no jurisdiction because a controversy is between citizens of different States, and that a proceeding by habeas corpus is, in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to “lawful” writs.

12. That where it appears from the record that the conviction was for disobeying a writ of habeas corpus, which writ the court have no jurisdiction to issue, the conviction is coram non judice, and void.

For these reasons I do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for.

No. V

How Passmore Williamson was finally discharged

Previously to the application on Williamson’s behalf to the supreme court of Pennsylvania, Jane Johnson, the woman who, and her two sons, were claimed as slaves by Wheeler, had appeared before Judge Culver of New York, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that Williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to assure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent Wheeler from detaining her. The same facts she had afterwards testified to in open court in Philadelphia, on the trial for assault and riot of the colored men who had assisted her to escape.

After the failure of the application to the supreme court of Pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of Williamson’s false imprisonment, but acting wholly independently of him, induced Jane Johnson to present a petition to Judge Kane, setting forth all the above facts, and praying that as the writ of habeas corpus obtained by Wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. After argument upon the question of allowing this petition to be filed, Judge Kane delivered a long and very elaborate opinion, embracing three principal topics. He began with a very elaborate eulogy upon the writ of habeas corpus, coming with a very singular grace from a judge who had prostituted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and assisted Jane Johnson to vindicate her rights under the laws of Pennsylvania. Next followed Judge Kane’s version of his proceedings in committing Williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the petition of Jane Johnson, or to pay any attention to its suggestions, on the following grounds:

“The very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. She asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. On the contrary, her counsel have told me expressly that Mr. Williamson has not sanctioned her application. She has therefore no status whatever in this court.”

After the delivery of this opinion a little episode followed, evidently got up with a view to relieve Judge Kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding: —

“On the conclusion of the delivery of this opinion, John Cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circumstances attending the commitment of Passmore Williamson, a proposition was made to amend the return to the writ, when Judge Kane replied: – ‘I will not receive an amendment now, but will be prepared to receive it when the record has been completed.’

“No such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts.

“Judge Kane replied that his (Mr. Cadwallader’s) impression was correct. He had been prepared to receive a supplementary return from Mr. Williamson’s counsel, but none had been offered.

“Mr. Cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. He was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation.

“Mr. Cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record.”157

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for Williamson, appeared in Judge Kane’s court, and asked leave to read a petition from Williamson. This petition contained a statement of the facts in relation to his connection with the liberation of Jane Johnson and her children, similar to that contained in his petition to the supreme court of Pennsylvania, Appendix. No. I. The following account of the proceedings on this motion is taken from the Philadelphia Gazette: —

Judge Kane said, ‘The court cannot hear an application from a party in contempt, except to absolve him. I understand there is an application, by petition, in the name of Passmore Williamson, which is not to relieve himself from the contempt, but – ’

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane said: ‘Let us not be misunderstood – I am not prepared to receive an application from Passmore Williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. I am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him.

‘If, therefore, the counsel arise to present an application from Mr. Williamson, it must be for purgation. The counsel do not inform the court whether they are here to purge Mr. Williamson from the contempt. As at present advised, I have no power to hear their application, whatever it may be, in his behalf.’

Mr. Meredith said there were two kinds of contempts; one of personal insult to the bench, with which Passmore Williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. He did not believe it was in the power of the entire press of the United States, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court that Passmore Williamson was desirous of testifying now his willingness to obey the exigencies of the writ of habeas corpus. If so, he had a simple, straightforward, honorable course to pursue. He has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. What is understood by ‘purgation’ is not simply a mere form of words. It matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. He said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation.

The respondent’s counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from Passmore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English or American, where persons were held guilty of a contempt in responding to a writ of habeas corpus unless the return was evasive. He referred to a case in 3 Mason, where, in a return to a writ before Judge Story, there was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. Mr. M. submitted whether it was not proper to subject the petitioner in this case to a further questioning. He could not find in English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer interrogatories. Why had they not been propounded in the form that the court might think proper to put them? No case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. How is he to answer what has not been filed?

According to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. If another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt.

Judge Kane said that the defendant could make a declaration, that he was now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt.

The court then said, ‘In some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or per se. I see no difficulty in the way of the court’s giving this decision in the form of an order.

‘The suggestion of the counsel now has frequently been intimated by the court. The prisoner might at any time, under a proper application, have been before the court. If there was a misunderstanding of the position of the case by the counsel for Mr. Williamson, it is a matter of sincere regret to me.’

Mr. Meredith said he could not find any case of petition that interrogatories should be filed, in any of the English books.

Judge Kane.– The gentleman, Mr. Williamson, is now recusant, and I often think that forms sometimes have meaning and I cannot interfere otherwise than to say as I have said above.

Mr. Meredith.– I can enlarge the remark and say that forms always have meaning. He argued that the purging interrogatories must be filed. If not filed, the party was entitled to his discharge. He argued from the ‘Chancery Practice’ of Smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him.

Mr. Van Dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. So far as Mr. Williamson is concerned, he has no standing. The argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. How far can a man in contempt come into court and purge that contempt? How did the counsel get over the fact, that his client was in contempt? He must first submit himself to the court by asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an entry on the part of Judge Kane of the following order on the record.

The United States v. Williamson. And now, October the 29th, 1855, the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of Passmore Williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said Passmore Williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said Passmore Williamson hath not at this time a standing in this court.

To the end, however, that the said Passmore Williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, Passmore Williamson shall set forth, under his oath or solemn affirmation that ‘he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore legally enquired of by the writ of habeas corpus to him directed, at the relation of John H. Wheeler,’ then the marshal do bring the said Passmore Williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. And it is further ordered that the clerk do furnish copies of this order to the said Passmore Williamson, and to the attorney of the United States, and to the marshal.

Under this order Williamson presented the following petition:

United States of America v. Williamson, District Court of the United States, Eastern district of PennsylvaniaTo the Honorable the Judge of the District Court of the United States for the Eastern district of Pennsylvania:

The petition of Passmore Williamson respectfully showeth: That he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogatories as may be addressed to him by the court, touching the matter heretofore inquired of him by the writ of habeas corpus to him directed at the relation of John H. Wheeler. Wherefore he prays that he may be permitted to purge himself of said contempt by making true answers to such interrogatories as may be addressed to him by the honorable court touching the premises.

P. WILLIAMSON.

Affirmed and subscribed before me, Nov. 2, 1855.

CHARLES F. HEAZLITT, U. S. Com.

Judge Kane hesitated to receive this petition because it did not conform to his order by containing the word legally, before the phrase “inquired of,” (thus confirming the legality of the proceedings under the original writ of habeas corpus directed to Williamson.) But finding that Williamson was resolved to make no such concession, Judge Kane finally concluded to receive the petition, and made the following reply to it:

‘Passmore Williamson: The court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. You will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of habeas corpus, which issued from this court at the relation of John H. Wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. Moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of habeas corpus.’

The required affirmation was then made in the form dictated by the judge.

Mr. Van Dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed.

Mr. Van Dyke said he was willing either to file the interrogatory or to submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. The court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the questions and answers should be filed.

The court directed that the interrogatories should be filed.

Mr. Gilpin then read the interrogatory that had been propounded, and the reply of Mr. Williamson.

The interrogatory was as follows:

‘Did you at the time of the service of the writ of habeas corpus, at the relation of John H. Wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? If to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.’

The reply made was as follows:

‘I did not seek to obey the writ by producing the persons therein mentioned before the court, because I had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. I first heard of the writ of habeas corpus on Friday, July 20, between one and two o’clock A. M., on my return from Harrisburg. After breakfast, about nine o’clock, I went from my house to Mr. Hopper’s office, when and where the return was prepared. At ten o’clock I came into court, as commanded by the writ. I sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. Since the service of the writ I have not had the custody, possession or power over them; nor have I known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.’