Yates v. Lansing

2. Whether Mr. Justice Spencer had a right to revise the adjudication of the chancellor, in the matter of complaint against John V. N. Yates; and discharge the prisoner on habeas cor pus ?

3. Whether the recommitment of Mr. Yates b}r the chancellor, after the actual discharge by 'Mr. Justice Spencer, was lawful?

Before I proceed to examine these questions, it is proper to notice a preliminary objection insisted on by the counsel for Mr. Yates. They contend that the door to these inquiries is now shut, by the decision of this court, at its last session, in the case of John V. N. Yates and The People.

I cannot admit the doctrine of immutability in the decisions of this court, to the unqualified extent claimed by the plaintiff’s counsel.

The decisions of courts are not the law ; they are only evidence of the law. And this evidence is stronger or weaker, according to the number and uniformity of adjudications, the unanimity or dissension of the judges, the solidity of the reasons on which the decisions are founded, and the perspicuity and precision with which those reasons are expressed. The weight and authority of judicial decisions depend also on the character and temper of the times in which they are pronounced. An adjudication at a moment when turbulent passions or revolutionary pbrenzies prevail, deserves much less respect, than if it were made at a season propitious to impartial inquiry, and calm deliberation.

The peculiar organization and practice of this court, renders it difficult to establish a system of precedents. In the supreme court the judges confer together, compare opinions, weigh each other’s reasons, and elicit light from each other. If they agree, one is usually delegated by the others, not only to pronounce judgment, but to assign reasons for the whole bench. But even in that court, and in the courts of Westminster-hall, the judges who silently acquiesce in the result, do not consider themselves bound to recognise as law all the dicta of the judge who delivers the opinion of the court.

In this court, the members never hold any previous consultation together; we vote, for the most part, as in our legislative capacity. Few assign any reasons, and fewer still give written opinions which may be reported. For these reasons, I think it would be extravagant and dangerous, to consider the dicta and opinions

of a single member, as settling definitively the law of the land, on all the points on which he chooses to give opinions, or to assign reasons.

.In the Case of J. V. N. Yates, at the last session, only one member (Mr. Clinton) gave a written opinion, or assigned reasons for reversing the judgment of the supreme court. ( 6 Johns. Rep. 496 .) A majority of the members voted for reversing that judgment ; but whether upon the grounds taken, and the reasons assigned by Mr. Clinton, it is impossible to know. It is certain that a majority agreed in the result; but there is no certainty that any two of that majority, grounded their opinions on any one of the various points that were discussed and relied on by Mr. Clinto n.

I One point insisted on in the eloquent opinion of that senator!, was, that the recommitment by the chancellor was by order, and that it ought to have been by attachment. ( 6 Johns. Rep. 512 .) This was a material question in the former record. It may be that the other members of the court who voted for the reversal of that judgment, rested their opinions on that point alone; and if so, that decision has no bearing on the present question.

This suit is for the penalty for recommitting after a discharge on habeas corpus; and the question is not as to the mode, but as to the right of recommitting. If the recommitment was “ knowingly, contrary to the statute,” it is immaterial whether it was by order, or by attachment; for the defendant is equally liable in both cases.

If that question were material in this case, it might be shown that courts of record may commit by order, or by writ; but a magistrate, not sitting as a court of record, can commit only by warrant, under his hand and seal. (2 Hale’s P. C. 122. 2 Roll. Abr. 559. Taylor v. Beal.)

Considering the questions which now arise, as not necessarily prejudged by the former decisions of this court, I shall now proceed to examine them, on the general grounds of reason and authority.

The right of punishing for contempts by summary conviction, is inherent in all courts of justice, and legislative assemblies; "and is essential for their protection and existence. It is a branch of the common law, adopted and sanctioned by our state constitution. The discretion involved in this power is, in a great measure, arbitrary and undefinable; and yet the experience of ages has

demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice.

The known existence of such a power prevents, in a thousand instances, the necessity of exerting it; and its obvious liability to abuse, is, perhaps, a strong reason why it is so seldom abused.

This power extends not only to acts which directly and openly insult, or resist the powers of the court, or the persons of the judges, but to consequential, indirect and constructive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court. (4 Bl. Com. 280. 2 Hawk. b. 2. c. 22. 1 Com. Dig. Attachment, A.)

The officers of the court are peculiarly subject to its discretionary powers, and may be punished in this summary manner, for oppression, extortion, negligence or abuse in their official capacity. (1 Bac. Abr. tit. Attachment. 2 Hawk. tit. Attachment. 3 Atk. 568.)

A contempt is an offence against the court, as an organ of public justice; and the court can rightfully punish it on summary conviction, whether the same act be punishable as a crime or misdemeanor, on indictment, or not. To challenge a senator or a judge, may, under circumstances, be a contempt; but is certainly indictable. A conviction on indictment will not purge the contempt ; nor will a conviction for a contempt be a bar to an indictment. The offence may be double ; and so are the remedy and the punishment. For instance, assaults in the presence of the court, rescous, extortion, libels upon the court or its suitors relating to suits pending, forging a writ, &c. are indictable offences; and certainly they are also contempts.

Contempts are never merged in statute offences, without express words for that purpose.

In this case it appears that a complaint was made to the chancellor against the plaintiff, by Samuel Bacon, a suitor, founded on his own affidavit, and the affidavits of Peter W. Yates and Richard S. Treat, charging that the plaintiff, being a master in chancery, filed a bill, on behalf of Samuel Bacon, and subscribed to it the name of Peter W. Yates, one of the solicitors of that court, without the knowledge or consent of P. W. Yates; and had acted as solicitor in the prosecution of the cause, under the assumed name of P. W. Yates. It also appears by the order of conviction, that the plaintiff “ was regularly required” to answer this complaint before the chancellor; and that he did not appear to answer it

Whereupon, the chancellor made an order in the minutes of the court, “ that the bill be dismissed, that the said John V. N. Yates Pay the costs accrued in the suit; and that the said J. V. N. Yates be committed for his said malepractice and contempt.” An attachment accordingly issued; and the plaintiff was arrested and imprisoned under it.

After reciting the facts charged against the plaintiff in the order of conviction, and in the attachment, these words are added, « contrary to the statute in such case made and provided, in wilful violation of his duty as master, and in contempt of the authority of this court.”

The question here presented is, whether the chancellor had a right to make this order, and to issue this attachment ?

I am of opinion that the order is clearly a conviction for a contempt, and in legal construction imported nothing more. The words “ contrary to the statute, in wilful violation of his duty as master, and in contempt of the authority of this court,” in the connection in which they stand, are mere expletives, showing a strong sense of the indignity offered to the court; but are not a substantive ground of conviction. If those words had been omitted, the conviction would have been complete; and I think its legal import is the same with or without those words.

Suppose that instead of those words, the order had stated that the facts charged were “ contrary to the precepts of our holy religion;” would it be contended that the order was void, and that the chancellor had usurped ecclesiastical powers ? Suppose he had stated that flie conduct of Mr. Yates was “ contrary to the laws of all civilized countries,” would it be said he had assumed universal jurisdiction under those laws ? Utile per inutile non viliatur.

The attachment recites the order or adjudication of conviction, and “ therefore” commands the sheriff to imprison John V. N. Yates, “ until the further order of our said court.”

I consider this writ as an attachment for a contempt; and I think it a distortion of its plain import, to say that it implies any assumption of criminal jurisdiction, or that the chancellor held cognisance of, or meant to punish, the acts complained of, as a statute offence.

That the acts of fraud, imposition and extortion, of which Mr. Yates was so convicted, amounted, in judgment of law, to a highhanded contempt, I have no doubt; and that it was the right and the duty of the chancellor to punish him for it, and to compel

him summarily, to reimburse the money he had extorted from the suitor, is equally clear.

It is contended that the attachment is illegal, because it was founded on conviction without an examination on interrogatories.

To this objection several answers occur: 1. It does not ap* pear from the attachment, whether there was such an examination or not; nor does the law or usage require that the whole proceedings which led to the conviction, should be recited in the attachment.

2. If we recur to the conviction, or order for the attachment, it appears that Mr. Yates refused to answer the complaint, “ although regularly required so to doand I think such refusal to answer, is not only a waiver of the right of being examined on interrogatories, but an admission that the complaint was well founded.

3. That the chancellor had a right to dispense with such examination, if in his judgment the proof by affidavits is sufficient in itself, and of such credit, as that a denial by the party aceussda under oath, would not countervail the affidavits. (King v. Vaughan, Doug. 516. 4 Bl. Com. 284.)

4. We are not now deliberating on an appeal from chancery. We must confine ourselves to the record brought here by the writ of error. The only question is, whether the judgment of the supreme court is rights and, of course, we have no more power to examine the proceedings which led to the conviction, or the grounds of the adjudication in chancery, than the supreme court had. If there was no essential defect on the face of the attachment, and it purported to be an attachment for a contempt, we are bound to presume that the conviction on which it issued was regular and well founded.

The last objection to the original commitment is, that it was “ until the further order of the courtand, therefore, it is not definite and terminable, either by the efflux of time, or on the doing of some act by the prisoner.

The object of this commitment was to compel remuneration to the injured suitor; and also to punish Mr. Yates for contemning the authority of the court, and polluting the streams of justice. It was impossible to foresee when he would indemnify the suitor, and make satisfactory atonement for his affront to public justice; there seems, therefore, an obvious propriety in directing the ins

prisomnent “ until the further order of the court.” It is equh/alent to saying, as in common warrants, “ until he be delivered by due course of law.” It is, in fact, as definitive as the nature of the case would admit; for if it had been “ until he makes satisfaction to the injured party, and acknowledges his contrition for his of-fence,” the court must, at last, judge of the compliance; and it would in either case be, in effect, during the pleasure of the court.

I think it, however, a sufficient answer to say, that the precedents uniformly agree with the form of this attachment, in that respect, and that the established usage in ail our courts, and in the English courts, distinctly traced back to the Year Books, also corresponds with it. This long usage proves that it is wise and safe. But if it be in itself wrong, we have a right to apply the maxim, communis error facit jus.

The commitment of George Clarke for a contempt, at the last session, was “ during the pleasure of the senate.” It has been said that “ such an imprisonment ceases with the adjournment of the legislature, and is, therefore, terminable on the happening of that event.” (Opinion of Clinton, Senator, 6 Johns. Rep. 506 , 507.) But to this it may be answered, that the imprisonment does not necessarily, or of course, cease with the adjournment. The prisoner can then be released only on habeas corpus ; and I trust it will not be contended that a commitment is legal, wherever it leaves the prisoner liable to a discharge on habeas corpus. Besides, the adjournment of the legislature depended on their own volition, subject only to the right of prorogation by the governor. It was, therefore, an imprisonment during pleasure, in the largest sense, and not terminable by the efflux of time. There was no certainty that the senate would ever adjourn. The house of assembly expires annually, but the senate ,<pists in perpetuity.

I have now arrived at the conclusion that the original imprisonment of Mr. Yates was a legal commitment, upon a conviction for a contempt. , • ’

The next question is, whether Mr. Justice Spencer had a right' to discharge Mr. Yates on habeas corpus, from his imprisonment under the attachment of the court of chancery ?

Serjeant Hawkins (b. 2. c. 15. s. 73. 76.) shows, that the superior courts pay the highest regard to each other’s decisions, and will presume them to be agreeable to law, unless the contrary expressly appear^.

-Since the violent contest between the court of chancery and the king’s bench, in the reign of James I. the English authorities uniformly.bhow a scrupulous forbearance in.their courts to interfere with each other’s proceedings, in matters of contempt. The Case of Chambers (Cro. Car. 168.) exemplifies this remark. He was committed for a contempt, and upon being brought into the king’s bench, on habeas corpus, he was remanded, and the court said it is not the usage of this court to deliver one committed by the decree of one of the courts of justice.” Such has been the uniform tenor of English' decisions down to the era of our independence. This principle has been so fully recognised by our courts, that no question has arisen upon it before the present case. It is founded on this strong reason, that these superior courts are coordinate. Equal confidence is reposed in their learning and integrity ; and it is, therefore, unfit that one should assume a right to judge of the other’s proceedings, especially as the constitution has provided a tribunal for the express purpose of correcting their errors.

Such an exercise of power by the supreme court would distort the symmetry and proportion of our system of appellate jurisdiction ; but the deformity is still more glaring when the power is exercised by a judge in vacation.

The case of Gist v. Bowman, (2 Bay’s Rep. 182.) in the supreme court of South Carolina, in the year 1798, bears a strong analogy to the present case. Bowman was committed for a contempt, by an order of one of the three chancellors, who compase the court of chancery in that state; and being brought before the supreme court, on habeas corpus, a question was made whether one of the three chancellors was competent to make such an order of commitment; and it was unanimously decided that the prisoner was not entitled to be discharged by the common law judges; that the habeas corpus act did not embrace the case; that the supreme court had no jurisdiction, and that they ought to refer the question to the court of chanceiy. This doctrine is great authority, because it was made by the highest tribunal of a sister state, whose civil institutions are congenial with our own.

It seems to be conceded thata judge in vacation had no power, at common law, to allow a habeas corpus, or to make any order In relation to it. His power, in that, respect, is derived solely from the statute called the habeas corpus act. Judge Spencer, in this

instance, marked the writ “ by statute,” and thereby evinced that he claimed jurisdiction under the statute only.

I cannot perceive any difference between our habeas corpus act and that of Great Britain, in relation to the point now before us. Whether a judge in vacation has any powers under this statute, other than to bail persons committed for trial, or to keep the peace, and answer indictments, is a question which, perhaps, need not be decided in this cause. There seems, however, strong ground to conclude, that his power “ extends only to cases of commitment for such criminal charge as can produce no inconvenience to public justice, by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law,” which can only be issued in term. (3 Bl. Com. 137. 10 Mod. 429.) It is,,however, very clear from the express exceptions in the statute, that a judge in vacation has no right to discharge “ persons convict, or in execution by legal process.”

In examining the original commitment by the chancellor, my judgment is satisfied, that it was neither more nor less than a commitment on a conviction for a contempt. I am, therefore, obliged to conclude that the decision of his honour Judge Spencer was erroneous on that point. I think Mr. Yates was, in the true sense of the 3d section of the habeas corpus act, “ a person convict, or in execution by legal process,” and, therefore, expressly within the exception to the powers given to the judge by the statute under which he discharged the plaintiff.

Mr. Yates was, however, actually discharged by Judge Spencer; and this brings me to the next inquiry, whether the recommitment by the chancellor, after the actual disclw/rge by Mr. Justice Spencer, was lawful ?

The 5th section of the habeas corpus act declares, “ that no person who shall be set at large upon any habeas corpus, shall'be again imprisoned for the same offence, unless by the legal order or process of the court wherein he is bound by recognisance to appear, or other court having jurisdiction of the cause.”

I think Mr. Justice Spencer exceeded his jurisdiction in discharging Mr. Yates, and, of course, that discharge was unauthorized and void. It had no more legal operation or effect, than if the habeas corpus act had never existed; and the right of recommitment by the chancellor rests on the same footing as if Mr. Yates had been discharged on the order of any private citizen.

In discharging Mr. Yates, Judge Spencer acted ministerially, or if judicially, he acted as a court of special and limited jurisdiction under the statute, and the proceeding was coram non judice.

In my judgment, the chancellor had originally “ jurisdiction of the cause,” that is, of the cause of commitment, which was “ for malepractice and contemptand, of course, this presents a case clearly within the exception in the fifth section of the statute.

If it be a case within that exception—if Judge Spencer acted extrajudicially, in discharging the prisoner, it seems to me against sound legal discretion to contend that such a discharge, by a person having no right to make it, can be effectual and conclusive to rescue a prisoner in execution for a contempt, and to exculpate him from the guilt established by his conviction.

The court of chancery not only had “jurisdiction of the cause,” but exclusive jurisdiction. No court can punish for con-tempts of another court. And if the discharge by the judge is conclusive, whether right or wrong, and whether he had jurisdiction or not, it must result, that a man who stands convicted of a gross contempt against the court of chancery, and a daring affront to public justice, may, without satisfaction, and without pardon, escape all punishment, and bid defiance to all the constituted authorities of the state.

Such a doctrine would go to prove that a judge in vacation has not only a power to revise the decisions of every court in the state, but that, in effect, he may exercise the power of pardoning convicts. Suppose a person convicted of murder, or treason, and on writ of error the supreme court pronounce judgment of death, and the executive refuses to respite the sentence, can the idea be tolerated, that a judge of the supreme court, in vacation, or a recorder of New-York, Albany or Hudson, (who have equal powers,) may conclusively discharge the culprit on habeas corpus, at the moment of execution ? Such a despotic control over judicial decisions, and executive discretion, would, indeed, secure the personal liberty of one man, but its inevitable tendency would be to enslave millions.

For these reasons, I think the chancellor had a perfect right to recommit Mr. Yates, for the same offence. He was equally liable to recommitment as if he had escaped from prison, or been rescued by violence.

But if I am mistaken in every position which I have laid down,

there still remains this solemn and important question; is the defendant responsible, in this action, for acts done by him officiall y and judicially as chancellor of this state ?

In order to give a just construction of the fifth section of the ** ' habeas corpus act, which gives the penalty claimed by the suit, it jg necessary f0 examine the law generally in regard to the responsibility of judicial officers.

Serjeant Hawkins (b. 1. c. 7. s. 6.) lays down this general, rule, “ that the law has freed the judges of all courts of record from all prosecutions whatsoever, except in the parliament, for any thing done by them openly in such courts as judges.” The English authorities, from the. Year Books down to the present day, uniformly establish and fortify this doctrine, that where courts of special and limited jurisdiction exceed their rightful powers, the whole proceeding is coram non judice, and all concerned in such void proceedings are liable to an action by the party injured. (Case of Marshalsea, 10 Co. 68. Terry v. Huntingdon, Hardr. 480.) But in the case of Miller v. Seare, (2 Bl. Rep. 1141.) Lord Chief Justice De Grey said “ that the judges of the courts of general jurisdiction were not liable to answer personally for their errors in judgment. The protection as to them is absolute and universal; with respect to the inferior courts, it is only while they act within their jurisdiction.”

In support of this doctrine, I refer generally to Book of Assise, 27 Edw. III. pl. 15. 9 Hen. VI. 60. pl. 9. 9 Edw. IV. 3. pl. 10. Floyd and Barker, 12 Co. 23. Aire v. Sedgwick, 2 Roll. Rep. 199. Hammond v. Howell, 1 Mod. 184. Groenvelt v. Burnwell, 12 Mod. 286. 1 Salk. 396. 1 Ld. Raym. 454. Miller v. Seare, 2 Bl. Rep. 1145. Mostyn v. Fabrigas, Cowp. 172.

This rule has been invariably acknowledged as law in this state; ( 2 Caines’ Rep. 312 .) and has been recognised and supported by our sister states. In the case of Phelps v. Sill, in the supreme court of Connecticut, (1 Day’s Cases in Error, 315.) a suit was brought against a judge of probates, for omitting to take security from a guardian, and the court held that the action would not lie. They said, “ It is a settled principle that a judge is not to be questioned in a civil suit for doing, or for neglecting or refilling to do, a particular official act, in the exercise of judicial power.”

In the case of Lining v. Bentham, in the supreme court of South Carolina, (2 Bay’s Rep. 1.) in 1796, it was unanimously de

eided that a justice of the peace may commit for a contempt; that his warrant of commitment under his hand and seal was the best evidence of the contempt; and that he was not liable to an action for what he did in his judicial capacity, though he tras subject to indictment if he acted oppressively.

The same court, in 1796, in Brodie v. Rutledge, (2 Bay’s Rep. 69.) held that it was a well-settled rule of law, that no suit would lie against a judge, for any judgment rendered by him in his judicial character; though liable to impeachment.

Our statute is a transcript from the English habeas corpus act, and Serjeant Hawkins, in his learned exposition of that statute, (Hawk. b. 2. c. 15. s. 24.) says, “ the habeas corpus act makes the judges liable to an action at the suit of the party in one case only, viz, in refusing to award a habeas corpus ; and seems to leave it to their discretion, in all other cases, to pursue the directions o£ the act in the same manner as they ought to execute all other laws, without making them subject to the action of the party, or to any other express penalty or forfeiture.”

The fifth section gives a penalty against “ any person who shall knowingly, contrary to this act, recommit or imprison for the same offence, or pretended offence, any person so set at large,” &c.

I consider this section as having no application to the chancellor, or judges, in their judicial character. This penalty applies only to magistrates and others who act ministerially as conservators of the peace, or who commit for trial, or to answer indictments.

If the penalty for recommitting applies to the chancellor, while sitting as a court of chancery, it must equally apply to all the judges of the supreme court sitting together in term; and if the penalty be incurred by the supreme court, composed of five judges, how are they to be sued, jointly or severally ? If the judges, or a majority of them, are liable to be sued as a court, before what tribunal are they to be sued ? If in the courts of common pleas, do the parties lose the benefit of a writ of error to t-he supreme court? Or are the judges to sit in judgment on themselves ? These absurd consequences evince that, as courts, they were never intended to be made responsible.to the party in a private suit. Consider them liable in their ministerial capacity only, and the construction of this statute accords with the, established and revered principles of the common law.

The authorities cited show the general reason and policy of the

' law in maintaining judicial inviolability; and surely we ought not to adopt a construction of this statute abhorrent to every principle of justice and sound policy, unless that interpretation be imperiously required by the express and unequivocal terms of the statute. In this case the defendant acted in his judicial character, . as chancellor, and not otherwise.” There is no pretence that he acted from corrupt motives; on the contrary, it is expressly admitted that his intentions were pure.

That a chancellor or judge of the supreme court shall be compelled to decide new and difficult questions of law or equity, at the peril of incurring a severe penalty, if they happen to decide wrong ; that pure intentions and honest endeavours to perform their official duties shall afford them no protection, are propositions repugnant to reason and humanity, and cannot be law.

The habeas corpus act is justly prized as one of the bulwarks of freedom, ánd can be endangered only by its misapplication and abuse. Let us beware, that in our zeal for securing personal liberty, we do not destroy the virtuous independence and rightful authority of our courts of justice, and thereby subvert the foundations of social order.

So long as our courts are pure, enlightened and independent, we shall enjoy that greatest of earthly blessings, a government of lams; but whenever these tribunals shall cease to deserve that character, the standard of justice and civil liberty must give place to the sceptre of a tyrant.

My opinion is, that the judgment of the supreme court ought to be affirmed.

Paris, Senator, concurred.

Brett, Bruyn, Haight, Hall, Hopkins, Humphreys, Martin, Phelps, Stearnes, White and Williams, Senators, were also of opinion that the judgment of the supreme court ought to be affirmed, but did not state their reasons.

Great pains and much argument have been employed by the counsel for the defendant, to overthrow a decision made by this court at the last session, and to demonstrate, not only that the conclusions, but the reasoning adopted on that occasion, were untenable and fallacious. Although this course is unprecedented and totally unwarranted, yet the patience of the

court was yielded without reluctance tp a protracted discussion, which terminated in establishing what was never questioned: that the court of chancery, as well as every other court, has a right to punish contempts, and to apply the rod of chastisement to the conduct of its officers. But that chancery has the power of punishing for crimes; that a violation of a statute is not a misdemeanor, and that judicial irresponsibility is to ride over the rights of the people, and the constitution of the land, are positions which yet remain totally unestablished. Although I am willing to yield every tribute of applause to the erudition and ingenuity of the counsel employed for the defendant, yet I cannot concede that they have succeeded in overturning the decision of this tribunal. If I could conceive it relevant to the discussion to enter into a defence of the judgment of the court, I should not consider it attended with any difficulty to present a complete vindication ; but a measure of this kind would be an admission that a court might, at any time, and at all times, review its own decisions, or the decisions of its predecessors, and pronounce the law' to be different, at different periods and on different occasions, thereby entirely destroying the authority of precedent, converting the judge into the legislator, and reducing us to a situation where we might truly say, “ Misera est servitus ubi jus est out vagum aut incognitum.” In the case of Hartshorne and others v. Sleght, ( 3 Johns. Rep. 562 .) it was insinuated, with a view, of obtaining the benefit of a second writ of error, that courts might and ought to review their decisions. On that occasion, I thought it my duty to resist a doctrine which I then considered, and still do consider, as of the most pernicious tendency; and I animadverted upon it in the following words: “ This cause is now before us, and it doés not avail the plaintiff in error to say that courts may and ought to review their own decisions. This court will hardly admit that doctrine. A motion for a rehearing after judgment has never been made or sustained, when a cause has. been once settled. When a decision has been pronounced here, the law is established; and no power can change it but the legislature. The rule becomes binding, not only upon all subordinate tribunals, but upon this court.”

A contrary determination would involve not only the greatest absurdities, but the greatest mischiefs. Inferior tribunals would be without chart or compass,; the authority of decisions would be

done away, and, one fourth of the senators of this court changing every year, adjudications would fluctuate with the mutations of members. What was law yesterday, would not be law to-day. It has never been known, at least in a court of dernier resort, that its decisions have been altered or revised in any other way than by the legislative power ; and even in courts not of dernier resort, if a different course has been, at any time, pursued, it has been remarked as a singularity. And when Lord Kenyon attempted to question the authority of an adjudication of his predecessor, it was considered as an anomaly, not as a rule in the conduct of judicial tribunals. Stare decisis et non quieta movere, is a maxim justly held in the highest veneration.

/''Admitting, then, the authority of the adjudication of last session, we have next to inquire into its bearing upon this cause. The present suit, is brought to recover a penalty under the fifth section of the habeas corpus act, which is in the following words : And be it further enacted, that no person, who shall be set at large upon any habeas corpus, shall be again imprisoned for the same offence, unless by the legal order or process of the court, or other court having jurisdiction of the cause. And if any person shall knowingly, contrary to this act, recommit or imprison, or cause to be recommitted or imprisoned, for the same offence or pretended offence, any person so set at large, or shall knowingly aid or assist therein, he shall forfeit to the party aggrieved 1,250 dollars, any colourable pretence or variation in the warrant of commitment notwithstandin g.”

[The decision of last session was on a writ of error, brought on a judgment on a habeas corpus. It appeared that the plaintiff in this cause was committed by the chancellor. That he was discharged by a judge, in vacation, under the habeas corpus act; reimprisoned by the chancellor, after such' discharge; and that, finally, the case was brought before the supreme court, in which three of the five judges decided in favour of the legality of the imprisonment; and that this court reversed that decision, considering the original imprisonment unjustifiable, and, of course, the , incarcerations as aggravations of the first wrong.

It is not, then, to be wondered at, that the counsel for the defendant should have pointed their principal attack at that decision of this tribunal. If that adjudicátion was right, it is difficult to conceive how the defendant can escape from the penalty of the statute; and there can, indeed, be no door of retreat, unless we

suppose, that it was founded exclusively on the illegality of the original commitment, and on the judgment of the supreme court, without any reference to the proceedings under the habeas corpus act, or unless we take the broad ground of judicial irresponsibility, or the more narrow ground of the inapplicability of the statutory prohibition to courts in general, especially to the court in question. On the supposition that our decision cannot be questioned, denied, or explained away, as to its general result, these are the only three points which can be brought to bear in favour of the defence.

As to the first point, it is explicitly denied that the decision was not in part bottomed on the proceedings under the habeas corpus act. The only opinion delivered in coincidence with the judgment of the court, took notice at large of that branch of the subject, and considered a judge in vacation a competent tribunal in such case; his discharge as final and conclusive, and a reimprisonment, after that discharge, as an infraction of the statute. It would, therefore, in strictness, not be necessary to revive this discussion, but as it has been much laboured, I shall bestow a few remarks upon it.

It appears obvious to me, that the habeas corpus act was intended to invest the same power in a judge in vacation that the supreme court has in term. The same limitations of power that controlled their proceedings at common law were applied to the judge under the statute; and as he is, in this respect, a creature of the statute, it became necessary to define the power in the act communicating it. The common law restrictions upon the power of the court were imposed upon that of the judge; and if he cannot take cognisance of other commitments than for crimes, if he cannot meddle with convictions whether legal or illegal, they are equally restrained; and, perhaps, there is only one case in which the court will interfere in favour of a prisoner in which a judge will not, and that is in case of dangerous sickness, when the laws of humanity require their interposition; and in a situation like this, the common law, in a spirit of benevolence,, has planted no check against judicial discretion.

If the power of the judge is only limited to commitments for crimes, as has been zealously contended for by the defendant, it would not bear him out in this case, because the conviction was for a crime, and therein principally consisted its illegality; but this construction is not only in the teeth of existing practice, but

in the face of the statute. It cannot be denied but that the power of the judge, or commissioner, is commensurate with all unjust imprisonment, except in treason and felony, and this has been the invariable understanding, and undisputed practice, until the agitafion of this cause has elicited new and extraordinary doctrines. 0jjjec(_ 0f £he statute would be greatly frustrated, if a judge has no right to take notice of illegal convictions; if he is confined to crimes only, what remedy is there for all illegal imprisonments in other respects ? Must the injured party wait until the sitting of the supreme court? And will damages to any extent, in-an action for a false imprisonment, atone for a violation of feeling, and personal liberty, and an infraction of the great rights which distinguish a free man from a slave ? Suppose a child is torn from his parent, a wife from her husband, a citizen from his habitation, and placedfin close confinement, is there no court of summary jurisdiction authorized to grant relief? Is he to be told that he must wait until the supreme court convenes, which may be in not less than three months ? And are we to suppose that our law would be silent on a point of so great and of such obvious importance ? .But the law is not "silent ;• it arms the judge with power over all persons imprisoned; whereas that of Great Britain is confined to crimes. Because the two statutes vary in. that important respect, and because ours has not a preamble like that of the British statute, and because in the last edition of the revised laws, a preamble, was struck out, it is maintained that they are similar, or, jn plain English, that they are alike, although they differ. ■

|At the last session, it was earnestly contended not only by the bar, but by some of the bench, that as long as the conviction was not quashed or reversed, no court or judge could grant relief by habeas corpus. But the leading case of Bushell, in C. B. and a train of decisions founded upon it, which were produced and relied on, seem to have imposed silence on this head. But it is now asserted that a judge is restrained from interfering with any conviction whatsoever, on account of the words. “ other than persons convict, or in execution by legal process.” A commitment in Consequence of a conviction is an execution. If. a judge has a right to take cognisance of an illegal execution, he has, of course, a right to notice the case of a person convict, because the execution is bottomed on the conviction, and the words by legal process, refer not only to the legality of the execution, but to the legality of the conviction. Where the execution is not legal, the"

judge may relieve. Why not, then, where the conviction is illegal. The conviction does not incarcerate; it is the mittimus emanating from the conviction; and in the case before us, the relief granted was on the attachment, which was the execution confining the prisoner. That the statute authorizes the judge to interfere in cases of execution, other than executions by legal process, cannot be questioned, nor is it attempted to be denied. But how many cases can be shown where the judges have relieved in this summary way ? Some have been particularly referred to. "Those of Benedict Lewis and Hannah Clap, fell under the cognisance of the Chief Justice, in which he very properly and efficiently extended relief. The judge is unquestionably constituted a tribunal to examine the legality of the conviction and the execution. If "they are according to law, he is restrained from interfering ; but if they are, in his opinion, illegal, then he may relieve the prisoner; and this being the case, it is immaterial-whether his decision is correct or not, as it respects the power of chancery, or any other tribunal or person, to reimprison, except the court that has power to try the cause, i

But it is maintained that admitting the illegality of the imprisonment, yet the chancellor,, acting as a court, is irresponsible, particularly to private prosecutions or indictments ; and a variety of learning and not a little declamation, have been displayed in support of this position.

The Chief Justice, in his elaborate opinion, has exhausted all that can be said on this subject; and in noticing it, I shall certainly treat him with all the respect, so justly due to his high station and eminent talents. Whether he has travelled out of the usual routine of judicial conduct, to support a cause which was not then debated by the plaintiff, is not a material point for inquiry, because, in giving an opinion, he had undoubtedly a right to assign his reasons at large; and because, we have every reason to believe he considered it his duty to vindicate judicial irresponsibility to its full extent, from a sincere conviction that it is connected with the due administration of justice, and with the best interests of the country.

Where a judge acts within his jurisdiction, it would entirely destroy his independence and his usefulness, if he were liable to answer to individuals who might conceive themselves aggrieved by his decisions. It is the lot of humanity to err, and what man would take an office, which would expose him, in the execution of

its duties, to the prosecutions of unfortunate or dissatisfied suitors ? No judge would be able to stand up against the expense and vexation that would result from this position; and it is no less than impolitic, to expose him to amenability for errors, to which we are more or less subject. This is the true principle an¿¡ the true reason, why judges, acting as judges, that is, acting within¡ the sphere of their, delegated authority, are protected in England. It is true that a judge is held to be responsible to the king. The king being the fountain of honour and justice, and the judges being the delegated ministers of the judicial power, it is presumed that they ought to answer to him only, as their principal and constituent. But this can never be applicable here; and, in England, it cannot apply to cases where the judge has no jurisdiction.

iThe case of Miller v. Seare (2 Bl. Rep. 1141.) was an action of false imprisonment, brought against three commissioners of bankruptcy. Ch. J. De Grey decided that the commissioners had no power to commit, and were, therefore, liable. In giving the opinion of the court, he took occasion to say “ that the judges, in the king’s superior courts of justice, are not liable to answer personally for their errors in judgment; and this, not so much for the sake of the judges, as of the suitors themselves.” “ In courts of special and limited jurisdiction, having power to hear and determine, a distinction must be made. While acting within the line of their authority, they are protected as to errors in judgment; otherwise they are not. So, in Dr. Bonham’s Case, false imprisonment lay, because they had exceeded their authority. In Dr. Groenvelt’s Case it did not lie, because they were within their jurisdiction. In Dr. Bourchier’s Case, and the case of Terry and Huntingdon, in Hardres, it lay, because of the excess of jurisdiction.” “ In all cases (continues Ch. J. De Grey) where protection is given to the judge giving an erroneous judgment, he must be acting as judge. The protection in regard to the superior courts is absolute and universal; with respect to the inferior, it is only while they act within their jurisdiction.” This is the authority principally relied on, and it will be at once perceived on how slight a foundation. It was a mere obiter opinion, not applicable to the case before the court; but if critically examined, it is susceptible of a construction, not incompatible with truth. The maxim of Ch.

man be said to act as a judge, when he has no jurisdiction ? Will the mere forms or symbols of office, the mere occupation of a judicial bench, constitute a judge ? Suppose the Chief Justice were to go into his court, and declare himself possessed of chaneery powers, and commit a man for not answering a bill in chancery, and should be attended by his clerk and officers of justice, and open his court with his usual formalities, would any man have the hardihood to say that this pageantry and assumption would protect him from amenability? Unless it can be supposed that the superior courts in England and this country, have jurisdiction coextensive with every object of judicial cognisance, then we must admit that their jurisdiction is not unlimited, and that, consequently, they may act beyond it, and ought to answer for it. Their jurisdiction is unlimited as to place, but not as to the quantity of judicial power. The process of chancery and the supreme court, runs into every county of the state; but their authority does not reach every mode of action, every source of litigation. And, therefore,, to say that those courts shall be protected in all cases, whether they act within their jurisdiction or not, and that inferior courts shall only be shielded when they act within their jurisdiction, is establishing a difference without a reason, and is investing the higher courts with arbitrary and discretionary power, over the lives, liberties and property of our citizens. The case of Hammond v. Howell, Recorder of London, (2 Mod. 219.) was an action brought against the latter, as commissioner of oyer and lerminer, for fining and imprisoning a juror on account of a verdict. The court held that an action would not lie against a judge for what he does judicially, though erroneously; that the old Old Bailey had jurisdiction of the cause, and might try it; and had power to punish a misdemeanor in the jury; and that, although the recorder acted wrong, yet, as he acted judicially, he was not liable. This, although carrying the principle of immunity to its utmost latitude, and although probably misapplied, yet may be considered as intended to come within the general rule of the necessity of jurisdiction, in order to furnish protection. In the celebrated case of the Marshalsea, (10 Co. 69. 76.) the doctrine of Ch. J. De Grey is contradicted, for “ it was resolved that the action well lies against the defendants; and a difference was taken when a court has jurisdiction of the cause, and proceeds inverso ordine, or erroneously, there the party who sues, or the officer or minister of the court, who executes the

precept or process of the' court, no action lies against them;” But when the court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard to the precept or process, and, therefore, the rule cited by the other side, “ Qui jussu judicis aliquod fecerit (but when he has no jurisdiction non estjudexj non videtur dolo malo fecisse quia parere necesse est, was well allowed, but it is not of necessity to obey him, who is not judge of the cause, no inore than it is a mere stranger, for the rule is judicium a non suo judice datum nullius est momenti; and that fully appears in our books; and, therefore, in the case betwixt Bowser and Collins, in 22 Edw. IV. 33. c. there Pigot says, if the court has. not power and authority, then their proceeding is coram non judice. As if the court of common pleas holds plea in an appeal of death, robbery, or any other appeal, and the defendant is at-tainted, it is coram non judice, quod omnes cóncesserant.,, I hope it will not be contended that a ministerial officer, obeying the orders of his superiors, is liable, when the persons giving them are not. The rule in such cases is, that “ where the subject matter of any suit is not within the jurisdiction of the court applied to for redress, every thing done is absolutely void, and the officer executing the process is a trespasser. But where the subject matter is within the jurisdiction of the court, but the want of jurisdiction is to the person or place, unless the want of jurisdiction appears on the process to the officer who executes, he is not a trespasser.” (Esp. Dig. 391.) The court of common pleas is a superior court of general jurisdiction, and yet it is, in the case of the Marshalsea, explicitly asserted, that an appeal of death, robbery, or any other appeal, would be coram non judice, and void; and, as has been justly observed, that if a judgment given by a judge is void, the correlative is true that it is not given judicially, and if it is pronounced by a man bearing the office of a judge, yet, if it is rendered coram non judice, it is of no more force or consideration, than if given by a person who is not a judgeT\

/The Chief Justice has triumphantly quoted Serjeant Hawkins on this subject, but he has inadvertently omitted a very material part. The whole section is as follows: “ And as the law has exempted jurors from the danger of incurring any punishment in respect of their verdict in criminal causes, it hath also freed the judges of all courts of record from all prosecutions whatsoever, except in the parliament, for any thing done by them openly in

such court as judges; for the authority of a government cannot be maintained, unless the greatest credit be given to those, who are so highly intrusted in the administration of public justice; and it would be impossible for them to keep up in the people that veneration of their persons, and submission to their judgments, without which it is impossible to execute the laws with vigour and success,” (thus far the Chief Justice has quoted, but Hawkins proceeds,) “if they should be continually exposed to the prosecutions of those whose partiality to their own causes would induce them to think themselves injured; yet if a judge will so far forget the honour and dignity of his post, as to turn solicitor in a cause which he is to judge, and privately and extrajudicially tamper with witnesses, or labour jurors, he hath no reason to complain, if he be dealt with according to the capacity to which he so basely degrades himself.”

The last part of the sentence,, which the Chief Justice omitted, is very material, because it contains a qualification of the general rule. It is admitted on all hands, with Hawkins, that for errors committed by a judge, quatenus a judge, he is not responsible, but it is equally contended, and Hawkins agrees in the doctrine, that if he acts extrajudically, he is then responsible. Indeed, Hawkins carries it beyond the jurisdiction, for he intimates that if a judge acts out of character, “ he will be dealt with according to the same capacity, to which he so basely degrades himself.” Our constitution renders a judge liable to impeachment for male '¡nd corrupt conduct in office. And the punishment does not extend further than to removal from office, and disqualification to hold any place of honour, trust or profit; but the party so convicted is, nevertheless, liable and subject to indictment, trial, judgment and punishment according to the laws of the land. The male and corrupt conduct cannot be ascribed to any error of the understanding, or to any misconduct, however gross or oppressive, or however injurious to individuals, unless it is attended by bad and corrupt motives. The malus animus is difficult, at all times, to establish; and there is no cause, be it ever so desperate, no conduct, be it ever so abandoned, but it may find not only advocates, but advocates who can advance plausible arguments, and who can gild over high-handed acts of oppression, with declamatory appeals in favour of judicial independence and official dignity. It will, therefore, be a rare instance to bring proof sufficiently clear against a judge, in order to produce

his removal. Impeachment is not only difficult to institute and hard to establish, but, when effected, what good does it do to the injured party ? Does the removal of an unjust judge remunerate him for imprisonment, for multiplied vexations and accumulated expenses. The protection furnished to a court, is commensúrate with its jurisdiction; for where jurisdiction ends, the judge also ceases to be a judge, and is not entitled to the immunities and rights of one. This is the recorded opinion of the defendant, delivered in the incipient stages of this affair. “ Upon my judicially determining (says the chancellor) that the interference of a single judge, to obstruct the process, and impede the justice of this court, was unwarranted, that his proceedings were coram non judice, it followed, as a necessary consequence, that his reiterating his interference, might or might not, according to circumstances, be imputed to him as a contempt of this court; for though a judge acting in the sphere of his jurisdiction, cannot, unless actuated by corrupt motives, be' impeached or questioned, it is otherwise, where such jurisdiction does not exist; he is then exposed to be treated as a contemner of the court, with whose process he interferes.” (See printed case, Ex parte Yates, p. 105.) Here we have the authority of the chancellor himself, that when a judge of one of the highest tribunals exceeds his jurisdiction, and trespasses upon that of a coordinate tribunal, he may be punished for a contempt; and if liable in that way, he must surely be responsible in a civil suit, to the party aggrieved; and here let me add, that it comes with a very ill grace from superior tribunals, to say that whether they act within or without their jurisdiction, they are equally protected from accountability, but inferior courts must take care and keep within their jurisdiction, for although their knowledge of the law is not so extensive as that of the other courts, yet their ignorance shall be no excuse, and although they require a more extensive, yet they shall receive a more limited protection. And let me further add, that this doctrine is not only unreasonable in itself, repugnant to law and common sense, but it is contrary to the principles of our government. The principle of responsibility pervades every department of a free government; for wherever responsibility ends tyranny begins. That a judge may fine and imprison, and punish ad libitum ; and whether he acts according to law or not, he cannot be reached by suit or indictment, is, in fact, saying that he may act the tyrant at pleasure. No man in the community is safe, if the judges who advocate such monstrous doctrines are,

which I can never believe, prepared to exhibit their practical operation, unless they are effectually checked and controlled by this high tribunal. The institution of an impeachment, as 1 before stated, is difficult. An accusation requires the sanction of two thirds of the assembly, and a conviction that of two thirds of this court, and the punishment neither furnishes any remedy to the injured party, nor does it extend to any personal penalties. How-difficult must it be, then, to convict a tyrannical judge, especially under the cegis of mental error, and under the Tclamonian shield of judicial irresponsibility ? Our constitution contemplates an impeachment for male and corrupt conduct in office, for acts done as a judge; and whether considering the extraordinary evasions that have been practised, a party complained against, in a case like the present, might not say in his defence, that the facts alleged being extrajudicial, he is not liable as for official conduct, is a point which time alone can determine. I can, therefore, never subscribe to the doctrine of unaccountability in the higher courts. The true distinction has been very judiciously pointed out in the course of this discussion. An inferior court shall, when questioned, show that it acted within its jurisdiction. Whereas in courts of general jurisdiction, jurisdiction is presumed until the contrary is shown.

¿ The only remaining question is, whether the chancellor acted within his jurisdiction. If his interference was prohibited by the statute, it clearly follows that his proceedings were coram non judice, and that he is liable in the same way as any other individual..

It is contended, first, that the statutory inhibition does not extend to courts; secondly, that if it does, yet that this case falls within one of the exceptions.

As to the first point, the words of the act are, “ That if any person shall knowingly, contrary to this act, recommit or imprison, or cause to be recommitted or imprisoned, for the same offence or pretended offence, any person so set at large, or shall knowingly aid or assist therein, he shall forfeit to the party aggrieved 1,250 dollars, any colourable pretence or variation in the warrant of commitment notwithstanding.”

To ascertain the meaning of this provision, and to identify the persons obnoxious to the penalty, it is necessary to observe, that, in the preceding section of the statute, there is an express "infliction of the same penalty upon the . chancellor and judges of the supreme court, for denying to allow the writ of habeas corpus;

and as the denial of the writ, in cases where it ought to be granted, is no greater injury to the individual than recommitting him for the same offence, where it has been granted and he has been set at large by competent authority, it is to be presumed that for similar injuries similar remedies would be provided, and that for similar offences, the same penalties would be prescribed. Indeed, the imposing a penalty on a judicial officer, for denying the writ of habeas corpus, is much more severe than the infliction of a penalty for knowingly recommitting a person set at large on a habeas corpus. It is sufficient, however, to show that the legislature intended to guard the liberty of the citizen, by holding these penalties over the heads of the ministers of justice. As the fourth section specifies the chancellor and judges of the supreme , Court, and the fifth refers to any person who shall knowingly recommit or imprison, it has been asked, why this phraseology was adopted, if it was intended to apply the penalty to the chancellor and judges in both cases ? The answer is obvious. By the ' act, the chancellor and judges only have thé power of granting a habeas corpus; but the persons having the power to imprison are as numerous as the magistrates and courts in the state. In the one case, there was no difficulty of specification; in the other, a general description was indispensable. But why should courts be protected more than other persons ? Is it not their bounden duty to protect the liberties of the citizen ? Is this not one of the great ends of their institution ? And if they violate the duties which they owe to the state, if they defeat the object of their establishment, why should their judicial character protect them ? The phraseology of the statute evidently refers to courts. Recommitment implies commitment, which is a judicial act: Any colourable pretence or 'variation in the warrant of commitment notwithstanding, certainly intends a judicial act, and was meant to guard against evasions of the provision by varying the apparent grounds of proceeding. Indeed, the principle contended for has not a shadow of support. If the chancellor is protected on the ground of his being a court, so is every justice of the peace, and every inferior tribunal, and thus' the statute would be a perfect dead letter. Here, let me further remark, that wherever a judge usurps a jurisdiction, the act he does is not a judicial act, however it may appear, but the act of an individual, though on either hypothesis the penalty would reach him.

As to the second point, it is said by the Chief Justice, «the

statute allows the party so discharged to be again imprisoned for the same offence, provided it be by the legal order or process of the court wherein he is bound by recognisance to appear, or other court having jurisdiction of the cause. Any court which has jurisdiction of the subject matter may reimprison, notwithstanding the discharge.”

The British statute directs a recognisance to be taken for the appearance of the prisoner in the B. R. or in such other court where the offence is properly cognisable. Our statute says generally, at the next court where the offence is properly cognisable, as the case should require. The right of reimprisonment, then, exists only in the court where he is recognised to appear, or in the court having jurisdiction of the cause; evidently meaning, that if he is bound to appear at one of our criminal courts, say the general sessions, and is tried and found guilty there, he may be reimprisoned, or if he is bound to appear at the general sessions, and is found guilty at a court of oyer and terminer, a court having jurisdiction of the cause, he may also be imprisoned. But here a latitudinal construction is adopted which will entirely nullify the statute. Any court having jurisdiction of the subject matter has jurisdiction of the cause, and may reimprison, says the Chief Justice. The chancellor has jurisdiction in contempts; the plaintiff was committed for a contempt; therefore, he had jurisdiction of the subject matter; and having jurisdiction of the subject matter, he had jurisdiction of the cause, and had a right to reimprison. Unfortunately, this conclusion is founded upon a gratuitous assumption of facts, and upon the most common place sophism. In the first place, it is denied that the plaintiff was committed for a contempt only. He was committed for a misdemeanor; 2d. On every concession, the commitment was for a misdemeanor and a contempt blended together, and so far as the misdemeanor entered into the cause of commitment, he had no jurisdiction; and, therefore, he had not complete jurisdiction of the cause, but acted under a usurped character; 3d. Having jurisdiction of the subject matter does not necessarily imply - having jurisdiction of the cause. If a power to commit for crimes generally, which is a jurisdiction over the subject matter, involves a power to recommit in a case wherein a prisoner is discharged under the habeas corpus act, then this great charter of our liberties, this boasted palladium of personal security, is a mockery and imposture. In the cases of Benedict Lewis and Hannah Clapp,

discharged by the Chief Justice under the habeas corpus act, the magistrates of the city of Albany, who had committed them to prison, had jurisdiction of the subject matter, by the “ act for apprehending and punishing disorderly persons;” now, if having jurisdiction of the subject matter invested them with the right of rejmprisonment, of what use or validity was the discharge of the Chief Justice ? Of what benefit is the habeas corpus act against encroachments of a tyrannical judge ? Will not the construction of the Chief Justice effectually protect him against the penalties of the statute, and leave personal liberty in the same state of insecurity as it was before the statute was passed ? Having jurisdiction over the subject matter does not, therefore, give the judge jurisdiction of the cause. The subject matter is the crime in the abstract. The cause is the case of the individual. In the case of Groenvelt v. Burnwell, and other censors of the college of physicians, this distinction was well remarked by Lord Chief Justice Holt. “ Here,” said he, “ the subject matter and the person are under the jurisdiction of the censors.” The concurrence of both gave them jurisdiction of the cause, and protected them from amenability; but'if the person had not been within their jurisdiction as well as the subject matter, then they would have been liable. After the discharge by the judge, the chancellor had no jurisdiction over the case of the plaintiff, even if he had it in the first instance, and, therefore, he had no power of reimprisonment. Jurisdiction of a cause intends the power of trying it; and will, any construction invest the chancellor with this right in the present case ? It appears to me that nothing can be more clear. The whole superstructure of sophistry is built upon the sandy founda-. lion of a petitio principii, and respecting, as I do, the talents and erudition of its author, I cannot but say, on this occasion, “ Ñeque semper arcum tendit Apollo.” ,|

,/ It is with not a little regret that I have seen the commencement and the progress of this controversy. Considering it as a dispute between two individuals, it dwindles into insignificance; but, in most of its stages, it has become a controversy between power and right, and between judicial tyranny and the liberty of the citizen. In this point of view, it has assumed an importance proportioned to the value of the objects which it embraces; and let not the unhallowed tongue of malignity insinuate, that the decision of this court, if against the judgment of the supreme court, will operate ¿s a protection to malepractice, extortion and misdemeanors.

If the plaintiff is guilty, he is still liable to punishment; but