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Show 416 APPENDIX . stitution, nor prohibited by it to the States, arc reserved to the States respectively, or to the people." . If this case ran be brought within the judicial power of the courts of the UnitedState ,itmust be either- 1st. Because it arises under the Constitution or the laws of the United States. Or, 2d. Because it is a controversy between citizens of different States, for it is very plain that there is no other clause in the Constitution which by the most latitudinarian construction, could be made to include it. ' Did it arise under the Constitution or the laws of the United States ? In order to give a satisfactory answer to this question, it is necessary to sec what the case was. If we confine ourselves strictly to the record from the district court we l~arn f~·o_m it that, on the 18th day of July last, John II. Wheeler prcsc1~ted Ius petition to the lion. J. K. Kane, judge of the district court for the castern district of Pennsylvania, setting forth that he was the owner of three persons he_Id to service or labor by the laws of the State of Virginia; such persons bemg re. pectively named Jane, aged about thirty-five years, Daniel, aged about twelve years, and Isaiah, aged about seven years, persons of ~olor; and that they were detained from his possession by Passmore \Vil-hamson but not fo · · 1 . ' r any cnmma or supposed criminal matter. In accord-ance ·w1 th the prayer of the f f ' f . pe I 1011, a wnt o habeas co?'pus was awarded, com~andmg P<~ssmore \Villiamson to bring the bodies of the said Jane, ~~mel,_ and Is:11ah, be_ro:e the judge of the district court, forthwith. To hls wnt, Passmore \V1lhamson made a return verified by l1's affi · t· th ttl 'd ' I una IOn, a 1 _e S~l Jane, Daniel, and Isaiah, nor either of them, were at the time of the 1ssumcT of the w ·'t .. t h . . . o n ' nor a t e tune of the return, nor at any other tunc, m the custodj' power or po · - · f . . ' ' s:sess10n o , nor confined nor restrained therr liberty by h1m · a d th t th " ' , n a , ere1ore, he could not produce the bodies as he was commanded. This return was made on the 20th day of July, A. D. 1865. "\Vhere-upon, afterwards, to wit: On the 27th day of July A D 1 gr.. ,- (,. tl · ·d ' · · OD, Sd.yS le Iecor ,) th.e counsel for the several parties having been heard, and the said return havi~g been duly considered, it is ordered and adjudged by the court tha~- the S~ld Passn:orc Wil~iamson be committed to the custody of tho marshal, 'uthout ba1l or mamr.ri' f • • < e :te, as or a contempt in refusing to make ~eturn to tLe wnt of lwbeas CO?jms, heretofore issued against him at the mstance of Mr. John II. \Vhceler." ' Such is the record. Now, while I am willing to admit that the want of APPENDIX. 417 jurisdiction should be made rieur, I deny that in a case under our habeas cO?]JUS act the party averring want of jurisdiction cannot go behind the record to establish its non-existence. Jurisdiction, or the absence thereof, is a mixed question of-l:nv and fact. I t is the province of fact to ascertain ,,.,hat the case is, and of law to determine whether the juris diction attaches to the case so ascertained. "And" says the second section of our act of 1785, "that the said jndge or justice may, according to the intent and meaning of this act, be enabled, by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded, or discharged, the return may, before or after it is filed, by leave of the said judge or ju. tice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained." This provision applies to cases of commitment or detainer for any criminal or supposed criminal matter, but the fourteenth section, which applies to cases of restraint of liberty "under any color or pretence whatever," provides that "the court, judge, or justice, before whom the party ~o confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand, or discharge the party so brought, as to justice shall appertain." .. The right and duty of the supreme court of a State to protect a _c1hzen thereof from imprisonment by a judge of a United States court havm~ no jurisdiction over the cause of complaint, is so manifest and so cs_sentially necessary under our dual system of government, that I cannot believe that this right will ever be abandoned or the duty avoided; but, if we concede, what appears to be the law of the later cases in the Federal courts, that the jurisdiction need not appear affirmatively, and :uld to it that the want of juriRdiction shall not be proved by evid<'nce outside of the record, '~e .do v·u tually deny to the people o f t }I C Sta t e tlI e I·l'oo- ht to question the vahc. hty of an order by a Federal juuge consigning them to the walls of a pnson "without bail or mainpri;~,e." . '\Vhat a mockery to say to one restrained of his liberty, "Tru~, 1_f t:lC judo-e or court under whose or d cr you a1·e m· pu·· s on 'a cted without JUnsdlc- 0 tion, you are entitled to be discharged, but. t 11 e b t~r d en 1· 8_ Ul) On you. to. sh,o "· that there was no jurisdiction, and in showmg tlm; we 'ull not P011111t.) ~~~ to go beyond the record made up by the party against whom you compla.u~ .·. As the petitioner would be legally entitled, upon the return of the '\lit, to establish tho t~·uth of the facts set forth in hI.S petl· rlO n, so f a r 'a s they |
