In the Matter of Keeler/Opinion of the Court
the State tribunals with the authority of the United States on the other.
Whenever a case is presented embraced within the provision alluded to, no difficulty would be felt by me in issuing the writ, since the power to do it is clear, and there is nothing in the subject to prevent it or render it improper. The military is subordinate to the civil authority, and the privilege of the writ of habeas corpus cannot be suspended unless when, in cases of rebellion or invasion, the public safety may require it. Const. art. 2, sec. 9. It is only in that event the writ cannot be issued. There is no other restriction. In the Matter of Stacy, 10 Johns. 333, Kent, Ch. J., said: "It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. Nor can we hesitate in promptly enforcing a due return to the writ when we recollect that in this country, the law knows no superior; and that in England their courts have taught us, by a series of instructive examples, to exact the strictest obedience to whatever extent the persons to whom the writ is directed may be clothed with power or exalted in rank." And accordingly in that case the court did not hesitate to award an attachment for contempt against Morgan Lewis, a general of division in the army of the United States, (August, 1813,) commanding at Sackett's Harbor, for a refusal to obey the writ.
In the sentiments expressed by the chief justice on that occasion, I fully concur and will add that there is no officer, civil or military, so exalted, except the president of the United States, as not to be subject to this writ, and none so low as to escape its operation. The officer and the citizen must alike yield to its mandate. The president himself would not be exempt because he is above the law or because he can do no wrong, but because he cannot be held responsible except through the medium of impeachment, and to allow the writ to go to him, would involve the necessity of punishing him for a refusal to obey it, and such a power does not belong to the judiciary. The power to issue the writ in this case and compel obedience to it, is clear; but it is to be observed that the writ of habeas corpus does not issue as a matter of course on application, although it is frequently called a writ of right, and is so in the enlarged sense of that term. But where the defect or illegality complained of does not appear, an affidavit should be made stating the circumstances under which the person imprisoned or detained is entitled to the benefit of the writ. 1 Chitty, C.L. 124; Hand, Prac. 519; Ex parte Bruce, 8 East, 27; Hottentot Venus, 13 East, 195. In the English courts affidavits have been uniformly required, as an examination of the cases will show. And it may not be improper to remark, that as interferences with the military authority for any cause whatever are regarded with jealousy, a strong case ought to be made out, before a court or judge of the United States would send the writ to a military officer. Reasonable grounds must exist for awarding the writ, because if it should issue upon a mere unsupported application, a felon, under sentence of death, or undergoing imprisonment in a prison, or a person confined for insanity, or other prudential reasons, might obtain a temporary enlargement, although certain to be remanded. And therefore, Sir Edward Coke, when chief justice, did not scruple to deny a habeas corpus to one confined by the court of admiralty for piracy, there appearing on his own showing, sufficient grounds to confine him. 3 Bulstrode, 27; 2 Roll. Rep. 13R; 3 Bl. Com. 132. And so the court of King's Bench in the case of Schiever, 2 Burr. 766, denied the writ, saying, that upon his own showing he was clearly a prisoner of war and lawfully detained as such. It must sufficiently appear that the party is imprisoned or detained against his will, without authority of law, and is consequently entitled to be relieved by the efficacy of this writ. It is the imperative duty of every district judge of the United States, when a proper case is presented either in court or at chambers, to promptly interfere in behalf of the injured party, and for one it will always be my pleasure to do so, because by the constitution itself it is plainly enjoined upon every officer of the government, civil and military, judicial, executive, and legislative, to guard and protect the personal liberty of the citizen, and not sanction any invasion of it without due process of law.
What would be sufficient grounds to issue a writ of habeas corpus, must, to a great extent, depend on each particular case; and while the court or judge, so far from throwing obstacles in the way, would undoubtedly afford every reasonable facility to an injured person to obtain the benefit of this great and salutary remedy, yet too willing an ear should not be lent to these applications, backed as they generally are by our sympathies, lest a doubtful wrong or fanciful injury should be redressed at the expense of public justice. And moreover as these applications are hurtful to the military service, productive of serious inconvenience, not unfrequently attended with great expense, besides encouraging an idea among soldier, ignorant of law, that a discharge may easily be obtained by appealing to the judicial authorities of the United States; it would seem to follow as a necessary consequence, that a strong case should be made out, and all the requisites of the law at least substantially complied with, before this extraordinary power can be successfully invoked. The proof of the facts alleged in this application, before a court or judge of the United States, would certainly entitle George B. Keeler to be discharged. But in the exercise of a sound discretion it would not be proper, as it seems to me, to award a writ of habeas corpus in the case at present, because the application must be treated as unsupported by affidavit or oath, since judicial notice cannot be taken of a justice of the peace of a sister State, and there is no proof of any kind to show that the person before whom this application purports to have been verified, was in fact a justice of the peace, and as such authorized to administer oaths, for the false swearing of which a person could be prosecuted for perjury. The certificate of the justice simply, cannot be received as evidence of his authority, because he is not an officer of such grade and rank as to make his official acts prove themselves. He is not like a notary-public, whose acts prove themselves in all commercial countries, when verified by his notarial seal. 3 Wend. 178.
These applications should be supported by oath, taken before some competent person authorized to administer the same, and of whom judicial notice will be taken, or who is shown to be so by proper evidence; and this application failing to show that, must be denied, but without prejudice to another application.
UNITED STATES vs. JAMES S. CONWAY,
- The "Act to regulate the sale of property on execution," approved 23d December, 1840, commonly called the valuation law, is constitutional, according to the doctrine in Bronson v. Kinzie, 1 How. 311, and its provisions must be followed in executing the final process of the court.
- The obligation of a contract and the remedy to enforce it are distinct things, and whatever belongs to the remedy may be altered according to the will of the State, as to both past and future contracts, provided the alteration does not impair the obligation of the contract.
- The obligation of a contract may be destroyed by den,ing a remedy altogether, or impaired by burdening the proceedings with new restrictions and conditions so as to make the remedy hardly worth pursuing; but a law which reserves property from sale one year, if two thirds of the appraised value shall not be offered, is not of that character.
- A writ of venditioni exponas issued before the expiration of the year is irregular, and will be quashed on motion, and a supersedeas thereto ordered.
July, 1843.—Motion to quash a venditioni exponas, determined before Benjamin Johnson, district judge.
A. Fowler, district attorney, for the plaintiff.
Chester Ashley, for the defendant.
OPINION OF THE COURT.—This is a motion made by the defendant, Conway, to have stayed, set aside, and quashed an execution issued in this case against him, on the 9th day of June, 1843, now in the hands of Thomas W. Newton, the late marshal of this district, on the ground that tbe same has been irregularly and illegally issued. The only question I deem it material to determine is, whether the execution law of this State, entitled "An Act to regulate the sale of property on execution," approved 23d December, 1840, (Acts, p. 58,) providing for the valuation of property taken on execution, and that it shall not be sold unless it brings two thirds of its appraised value, be a valid and constitutional law. If it be a valid law, having been adopted under acts of congress as the law of this court, (4 Story, Laws U.S. 121; 8 L. U.S. 62; 10 Ib. 244; 17th Rule of 6th October, 1842; Wayman v. Southard, 10 Wheat. 20; U.S. Bank v. Halstead, Ib. 51,) it follows that the venditioni exponas has irregularly and erroneously issued, one