In re Stacy — 10 Johns. 328

Majority

p. 332

In the Matter of Samuel Stacy, jun.

ALBANY,

August, 1813.

Headnote

pus?añowed by a commUsioner oí tnis court, was is-to a’c^com-navy* the Y‘* taño, and to landing°thé ^VnüldÉtates at Sackett’s topead? and every subordU nate officer under the said commandants, or either of them, commanding them to bring the body of Samuel Stacy, jun. &'c. immediately, &c. together with the cause, See. before the commissioners, €?*<?. The following return was endorsed on the writ: “I Morgan Lewis, general of division in the army of the United States, do return to the within writ, that the within named Samuel Stacy? jun. is not in my custody.”

This was held to be an evasive and insufficient return; and that the officer, to excuse himself for not producing the body of the prisoner, ought to have returned that he was not in his custody, possession or power .• and it appearing from affidavits, that the party was, in fact, in the custody of a subordinate officer, acting under the order of General ML. Lewis, and that the return was intentionally eluded and disregarded, the court ordered an attachment immediately against Gen. Lewis for a contempt.

dN the 21 st of July, 1813, Nathan Williams, Esq. one ot the commissioners of this court, allowed a habeas corpus, en- * 1 dorsed “ by the statute,” and directed to “ Isaac Chauncey, commandant of the navy of the United States on Lake Ontario„ ^ *° Morgan. Lewis, commanding the troops of the United at the station of Sackett’s Harbour, and to each and every subordinate officer under the said commandants, or either of them; and by which they were commanded to bring before him the body of Samuel Stacy, jun. together with the, Cause, &C.

The habeas corpus was grounded on the following affidavits: •

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1. Affidavit of Samuel Stacy, jun. taken on the 17'th of July? stating that he was a natural born citizen of the United States, and a resident of the town of Madrid in St. Lawrence county. That on the 30th of June last, he was on his way from Sacked’s Harhour to Madrid, when he was arrested at Watertown, by the order of Commodore Chauncey, and taken back to Sacked’s Harbour, and had since been kept in confinement there, and was wholly ignorant of the cause of his arrest and detention- That he had a numerous family in St. Lawrence county dependent on him for support, and that he and his family are suffering greatly from his confinement.

2. Affidavit of Amos Benedict, taken on the I7"th of July, stating that he had been acquainted with Stacy for about five years last past, and that he was a resident of St. Lawrence county, as stated in his affidavit, and that he understood from Commodore Chauncey himself, that he was arrested and detained by his order»

3. A further affidavit of Amos Benedict, taken on the 19th of* July, stating that he had since been informed that Stacy had been delivered over to General Lewis; and that to an application to Captain Smith, who had arrested and detained Stacy, to know the cause, he received the following letter; “ Sir, Sacked’s Harbour* July 18,1813, Samuel Stacy, who has been under my charge, was arrested by a verbal order from Commodore Chauncey, and under suspicion, as he believed, of having connexion in some way with the enemy, since the declaration of war; and that Stacy was yes*terday delivered into the custody of General Lewis, by a written order from Commodore Chauncey to him.”

To the habeas corpus the following returns were made i

“ I Morgan Lewis, general of division in the army of the United States, do return to the within writ that the within-named Samuel Stacy, jun. is not in my custody.

“ Morgan Lewis.’5

lc I Royal Torrey, to whom the writ hereunto annexed has been shown, for return thereto, respectfully represent, &c. that the said writ, as I am advised, either has improvidently issued, or is not directed to me, either by name or description, as no copy of the warrant of commitment of the said Samuel Stacy, jun. has ever .been demanded of me, which by law ought to have been, before.

•the .said writ could legally have issued.

66 Royal Torret,

i( Provost MarshcÜ J

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Á demand of the order or warrant of commitment being made, ^3G sa*(!‘ Torrey made a further return, as follows:

“ To the within request and demand Í return a copy of the order upon which I now detain the above named Samuel Stacy, jun.”

“ R. Torrey, Provost Marshal,

“ Sir—You will receive into the custody of the provost guard, from Commodore Chauncey, Samuel Stacy, charged by him the said commodore with an act of high treason against the government of the United States, committed within the territory tif the king of Great Britain.

“J* Chambers,

<£ Assistant Adjutant General.

tf£ Adjt. Gen’s. Office, Sachet? s

“ Harbour, 24th July, 1813.”

The above writ, returns and papers, were, by the commissioner, submitted to the supreme court for its “ aid and advice.”

The following affidavit was also submitted to the court; and Sedgwick, at the same time, moved for an attachment, or a rule to show cause why an attachment should not issue, against Gen. Lewis and R. Torrey for not making due returns to the said writ.

Affidavit of Justin Butterfield, taken the 5th August, 1813, stating that he served the said writ on Morgan Lewis, at Sachet?s Harbour, on the 23d day of July last, and that Gen. Lewis then asked his subordinate officers who were there present, “ if Stacy was the man’s name whom we have in custody,” or words of the like import, to which they answered that was the name. That the said M. Lewis then told the deponent, that he should return that the said Stacy was not in his custody; that he believed the said Stacy had been guilty of treasonable practices, in carrying provisions and giving information to the enemy, and that he believed a court-martial was the proper tribunal to try the said' Stacy, though he was a citizen, or words of like import; that the said M. Lewis then made the return which appears on the writ; that the deponent then asked the said Lewis if he would inform him in whose custody the said Stacy was, to which the said Lewis answered that he would not; that the deponent then went to Royal Torrey, and asked him if he was a subordinate officer acting under General Lewis, and he answered that he was

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provost marshal under General Lewis; and he further answered, on interrogation, that Samuel Stacy, jun. was in his custody, and that on the 18th of July last he took him into his custody by virtue of an order from John Chambers, quartermaster-general; that the order contained no charge against Stacy, and that Stacy ■had ever since remained in his custody; that the deponent then served the writ on Torrey, and offered him the money endorsed on the writ, and a bond to be executed according to the statute; that Torrey then said that he could do nothing until he had seen General Lewis ; that on the next day, being the 24th of July, he again called on Torrey, and found him copying the return above annexed from a draft which the deponent saw and believed to be in the handwriting of General Lewis, and he then gave the deponent the writ and the above return, and said that he had conversed with General Lewis, who believed that Stacy was guilty, and that he should make no other return; and that if the deponent would go and convince General Lewis that Stacy was innocent, that General Lewis would discharge him ; that Torrey told the deponent that after he had been served with the above ‘writ, he had given up to General Lewis the order upon which Stacy was detained at the time of the service of the writ, and that the order above annexed had been received after the service of the writ.

The deponent further stated, that Stacy had been closely confined at Sackett’s Harbour for the space of five or six weeks that at the time of the service of the writ, he was sick and confined in a small tent, and the guard informed the deponent they had orders to let no one visit him or speak with him but the physician and his wife, and that the deponent had since been informed that Stacy had been put in a guard-house and closely confined, and that his health continued bad.

The return is insufficient and bad upon the face of it. The writ was directed to Morgan Lewis, as commander of the troops’of the United States, at Sackett’s Harbour; and under his title of “ General of Division in the Army of the United States,” he simply "returns “ that the within-named Samuel Stacy, jun. is not in my custody.” This was evidently an evasive return. He ought to have stated, if he meant to excuse himself for the non-production of the body of the party, that Stacy was not in his possession or power. The case of The King v. Winton (5 Term Rep. 89.) is to this point; and the

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observations and decision of the K. B. in that case are entitled to oUr deepest attention. That was the case of a habeas corpus. granted by a judge in vacation, and returnable immediately before him. The return by the person to whom the writ was directed was, that he had not the body of the party “ detained in his custodyand that return being filed in the K. B., an attachment, on a rule to show cause, was made absolute against the party for an insufficient return. Mr. Justice Grose, in giving his opinion, observed, “ that the courts always looked with a watchful eye at the returns to writs of habeas corpus; that the liberty of the subject essentially depended on a ready compliance with the requisitions of the writ, and the courts were jealous whenever an attempt was made to deviate from the usual form of the return, that the party had not the person in his possession, custody or power, and that it had not been adopted in that case, but an equivocal one substituted, and the words ‘ power and possession’ omitted.”

The accompanying return, in this case, of Torrey, the provost marshal, does, of itself, contradict the return of General Lewis; for he admits that Stacy is detained in his custody, under an order issued from the adjutant-general’s office, at Sacked’s Harbour, so late as the 24th of Jidy last. This order and the detention under it, we are bound to consider as the act of General Lewis, the commander at that station, and we are equally bound •to consider the prisoner as being in his possession, custody and. power.

• Here is, then, appearing on the very face of the return, a contempt of the process.

But this is not all. The affidavit of Butterfield, who served the writ, proves not only the fact, that Stacy was then in the custody, under the orders, and by the authority, of General Lewis, but that the direction of the writ wag intentionally dis- ' regarded.

The only question that can be made is, whether the motion for an attachment shall be granted, or whether there shall be only a rule upon the party offending, to show cause' by the first day of the next term, why an attachment should not issue. After giving •the c.ase the best consideration which the pressure of the occasion admits, I am of opinion that the attachment ought .to be Immediately awarded.

. The attachment is but process to bring in the party .to .answer

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'ror the alleged contempt, and upon the present motion, we must act, as the courts have always, of necessity, acted, in like cases, upon the return itself, and the accompanying affidavits of the complainant.

This is a case which concerns the personal liberty of the citizen. Stacy is now suffering the rigour of confinement in close custody, at this unhealthy season of the year, at a military camp$ and under military power. He is a natural born citizen residing in this state. He has a numerous family dependent upon him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason, (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matters of which it might consist, and without any colour of authority in any military tribunal to try a citizen for that crime, is only aggravation of the oppression of the confinement. 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. One of the most valuable of those means is this writ of habeas corpus, which has justly been deemed the glory of the English law; and the parliament of England, as well as their courts of justice, have, on several occasions, and for the period, at least, of the two last centuries, shown the utmost solicitude, not only that the writ, when called for, should be issued without delay, but that it should be punctually obeyed. (See Brown’s Case, Cro. Jac. 543. and the stat. of 16 Car. I. c. 10. s. 8.) 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. On ordinary occasions, the attachment does not issue until after a rule to show cause; but whether it shall or shall not issue in the first instance, must depend upon the sound discretion of the court, under the circumstances of each particular case. It may, and it often does issue, in the first instance, without a rule to show cause, if the case be urgent, or the contempt flagrant. On this point the authorities are sufficiently explicit. (Rex v. Jones, Stra. 185.

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Davies, ex dem. Povey, v. Doe, 2 Bl. Rep. 892. Hawk. tit Attachment, b. 2. c. 22. s. 1.)

If ever a case called for the most prompt interposition of tpe court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding him in the closest confinement, and contemning the civil authority of the state. The parties are, also, at so great a distance, that no rule to show cause could be made returnable at this term; and if no good catise was shown at the next term, an attachment could not probably be issued from the city of New-York ivhere the court will then sit, and be returned the same term. Unless the attachment goes, the injured party may not feel the benefit of óur assistance until the ensuing winter. That delay would render the remedy alarmingly impotent. The case of Rex v. Earl Ferrers (1 Burr. 631.) is a precedent in point, for awarding the attachment in the first instance. In that case, a second writ of habeas corpus was issued, (the first writ not being obeyed without fault, as the party who sued out the writ, and who ivas the brother of Lady Ferrers, agreed not to prosecute it,) and not being obeyed, an" attachment was moved for, without a rule to show cause, and was granted. Lord Mansfield‘ observed, that “ the court may enforce speedy obedience to the- writ, and the circumstances of that case (where delay might be very dangerous) required it. And, therefore, the court thought, under the extraordinary circumstances of that case, an attachment should issue to enforce obedience to that writ of habeas corpus which so much affected the preservation and security of that lady.”

I am, for these reasons, of opinion that an attachment ought to issue.

Per totam Curiam;

Ordered that an attachment in this cause issue against General Morgan Lewis; but that the same be accompanied with a copy of this rule, which is to operate as instructions to the sheriff not to serve the same, if General Morgan Lewis shall forthwith, upon service of a copy of this rule upon him, discharge the said Samuel Stacy, jun. or shall cause him to be brought before Nathan fVilliams, Esq. commissioner, See. in obedience to the habeas corpus heretofore issued by him in this cause.