Ex Parte Tobias Watkins

32 U.S. 568, 8 L. Ed. 786, 7 Pet. 568, 1833 U.S. LEXIS 361

• Court: Supreme Court of the United States
• Decided: March 18, 1833
• Status: Published

Opinions

Mr Justice Story

delivered the opinion of the Court.

This Is an application to the court to award a writ of habeas corpus to bring up the body of Tobias Watkins; a prisoner, asserted to be illegally confined in the common jail of Washington county in .the district of Columbia, under process of-execution-issued from the circuit court of the United States for the same district. A rule wag served upon the attorney-general, to show cause why the application should not be granted; and the- cause has been fully argued upon the return of that rule., it is admitted that all the facts existing in the case have been laid before the court, exactly as they would appear if the habeas corpus had been duly awarded and returned; so that the judgment which the court are called upon to pronounce, is precisely that which ought 'to be pronounced upon a full hearing upon the return to the writ of habeas corpus, and it has accordingly been so argued at the bar.

The material facts are as follows. Watkins was tried at the May term of the circuit court 1839, upon three several indictments found against him at that term for certain offences against the United States;. and being found guilty, was upon each indictment sentenced to imprisonment for three calendar months, and to pay certain fines, to wit, on one indictment two thousand dollars, on another, seven hundred and fifty dollars, and on a third three hundred dollars, with costs of prosecution. There.is no award in either of the judgments, that the prisoner stand committed until the sentence be performed. Under these sentences Watkins was immediately committed to jail by the then marshal of the district; and -upon the expiration of his office, which was after the term of imprisonment was exhausted, and the appointment of a successor, he was delivered over, in jail with other prisoners to his successor; and he has ever since been detained in custody. The terms of imprisonment awarded by the judgments expired on the 14th of May 1830.

On the 3d day of September 1839, the district attorney sued forth three several writs of fieri facias, to levy the aforesaidfines; upon which due return was made by the marshal of nulla bona. Upon the 16 th of February 1830, the district attorney sued forth three several writs of capias ad satisfaciendum against Watkins to levy the same fines, which were all returnable to the then next May term of the circuit court.' By these precepts the marshal is commanded to take Watkins, and him safely keep, so that he have his body'before the circuit court on the first Monday .of May then next, to satisfy unto the United'States the fine, costs and charges. .No return was made-to the circuit court by the marshal according to the exigency of these writs ; and nothing further appears upon the. records and proceedings of the court, until the 10th day of January 1833, when the late marshal of the district made a return to each capias ad satisfaciendum as follows. “ Cepi. Delivered over to my successor in office.”

Upon this state of the facts several questions .have arisen and been argued at the bar ; and one, which is preliminary its nature, at the suggestion of the court. This is, whether, under the circumstances of the case, the court possess jurisdiction to award the writ. And upon full consideration we are of opinion that the court do possess jurisdiction. The question turns upon this, whether it is an exercise of original or appellate jurisdiction. If it be the former, then, as the present is not one of the cases in which the constitution allows this court to exercise original jurisdiction, the writ must be denied. Marbury v. Madison, 1 Cranch’s Rep. 137, S. C. 1 Peters’s Cond. Rep. 267. If the latter, then it may be awarded, since the judiciary act of 1789, ch. 20, sect. 14, has clearly authorized the court to issue it. This was decided in the case Ex parte Hamilton, 3 Dall. 17; Ex parte Bollman and Swartwout, 4 Cranch, 75; and Ex parte Kearney, 7 Wheat. Rep. 38. The doubt was whether, in the actual case before the court, the jurisdiction sought to be exercised was not original, since it brought into question, not the validity of the original process of capias ad satisfaciendum, but the present right of detainer of .the prisoner under it. Upon further reflection, however, the doubt has been removed.

The award of the capias ad satisfaciendum must be considered as the act of the circuit court, it being judicial process, issuing under the authority of the court. The party is in custody under that process; He is then in custody, in contemplation of law, under the award of process by the court. Whether he is rightfully so, is the very question now to be decided. If the court should, upon the hearing, decide that the capias ád satisfaciendum justifies the present detainer, and should remand the prisoner, it would clearly.be an exercise of appellate jurisdiction ; for it would be a revision and confirmation of the act of the court below. But the jurisdiction of the court can never depend upon its decision upon the merits of a case brought befpre it; but upon its right to hear and decide it at all. In Marbury v. Madison, 1 Cranch, 137, it was said, that it is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted ; and does not create that cause.

Tried by this criterion, the case before us comes in an appellate form, for it seeks to revise the acts of the circuit court. In Ex parte Bollman and Swartwout, 4 Cranch, 75, the prisoners were in custody under an order of commitment of the circuit court; and it was held, that an award of a writ of habeas corpus by the supreme court was an exercise of appellate jurisdiction. On that occasion the court said, so far as the case of Marbury v. Madison had distinguished between .original and appellate jurisdiction, that which the court is asked to exercise is clearly appellate. It is the decision of an inferior court, by which a citizen has been committed to jail. Ex parte Hamilton, 3 Dall. 17, wa.s a commitment under a warrant by a district judge; and the supreme court awarded a writ of habeas corpus to revise the decision, and admitted the party to bail; In Ex parte Burford, 3 Cranch, 448, the prisoner was in custody under a commitment by the circuit court for want of giving a recognizance for his good behaviour, as awarded by the court. The supreme court relieved him on a-writ of habeas corpus. In all these cases the issuing of the writ was treated as an exercise of appellate jurisdiction; and it could make no difference in the right of the court to entertain jurisdiction, whether the pror ceedings of the court below were annulled or confirmed. Considering then, as we do, that we are but revising the effect of the process awarded by the circuit court, under which the prisoner is detained, we cannot say that it is the exercise of an original jurisdiction.

The grounds principally relied on to entitle the prisoner.to be discharged are: First, that ,the fines imposed upon him are excessive, and contrary to'the eighth amendment of the constitution ; which declares, that excessive fines shall not be enforced. Secondly, that the prisoner could not be detained in jail orithe capias ad satisfaciendum longer than the return day of the process; and he should then have been brought into the circuit court, and committed by order of the court to the custody of the marshal for payment of the fine : otherwise by the laws of Maryland' (which is the law of this part of the district), he was entitled to his discharge.

The first point may be very shortly disposed of. The. eighth amendment is addressed to courts of the United Staté's exercising criminal jurisdiction, and is doubtless mandatory to them and a limitation upon their discretion. But this court has no appellate jurisdiction to revise the sentences of inferior . courts in criminal cases; and cannot, even if the excess of the fine were apparent on the record, reverse the sentence. And it may .be added that if this court possessed such a jurisdiction, there is nothing on the - record in this case, which, establishes that at the time of passing judgment the present fines were in fact, or were shown to the circuit court to be excessive. This objection may therefore be dismissed.

The other 'ground is of .far more importance and difficulty. At the common law,' whenever a fine and imprisonment constitute a part of the judgment upon a conviction in a criminal case, the judgment, if the party is in. court, is that he be pommitted to jail in execution of the sentence, and until thé fine is paid. If he’is not then in court,, a special writ of capias pro fine issues against him; the exigency of which is, that his body be taken and committed to jail until the fine is paid

(a). Unless such á committitur be awarded, he cannot, be detained in jail in execution of the sentence. It is the warrant of the jailor, authorizing the. detention .of the prisoner. . No capias ad satisfaciendum in the form appropriate to civil cases; where the exigency of the writ is to take the body of the party and him safely keep, so that the sheriff have his body before the court at the return day of the .process with the writ; is ever issued or issuable. If, therefore, the present case- were to be tried by the common law, the process of capias ad satisfaciendum, under which the prisoner is detained,, would be wholly insufficient to justify his detention.

Let us see, then, how the' case stands upon the laws of Maryland, by which, indeed, it is to be governed. The act of Maryland of the 20th of April 1777, ch. 6, which seems specially applicable to the recovery of pecuniary fines and forfeitures fixed by statute, declares^ that if such fines and forfeitures shall be recovered by indictment, the court may either commit the offender to the public jail till payment to. the sheriff, or order execution to levy the same on the offender’s lands, goods or chattels. This act is not supposed to have any, application to the present casé.. The act of 20th of April 1777, ch. 13, for- the more speedy and.effectual recovery of common law fines and forfeited recognizances, provides, that where any fine shall be enforced by any court of record for any common law offence on any person, it shall be lawful for the attorney-general or either of his deputies to order a writ of capias ad satisfaciendum, or a writ of fieri facias, to be issued for the recovery of the sum due thereon, on which writs such proceedings shall and may be had, as in cases where similar writs are issued on judgments obtained in personal suits. It may be here-stated, -that writs of capias ad satisfaciendum in Maryland are the same .in substance in their exigency as those prescribed in the common law. In another' section of the act (sect. 4), there is a proviso that nothing therein contained shall be construed to extend, to prevent the several courts, as they might heretofore lawfully do, from committing any person from the non-payment of any fine, if they shall deem it expedient so to do. This proviso completely establishes the antecedent practice hi Maryíañd to have been like that at the common law, to commit the offender for payment of the fine, and leaves it at the discretion of the court to order it in any future case. By necessary implication it affirms, that without such order the offend¿r is not detainablé in jail for the fine.

Then came the act of 24th of December 1795, ch. 74; which, after reciting that doubts had arisen as to the issuing of a capias ad satisfaciendum for the recovery of fines and forfeitures, provides, that it-shall be lawful for the attorney-general and his deputies ex -officio, and they aré hereby directed and required on application of the sheriff of the county, to order writs pf capias ad satisfácienduñi to be issued for the recovery of all fines and forfeitures. Another section of the act-declares it to be the duty of the sheriffs to return the writ of capias ad satisfaciendum to the courts, to which they are returnable at the term succeeding.the issuing of the sameand wherever the sheriff shall make return, that he has taken the body of the party, he shall be obliged either to acknowledge in open court the receipt of the amount of the fine or forfeiture, or to produce the body- of the party to the. court, to which the said writ shall be returned; and in default thereof, the court, upon motion of the attorney-general or his deputy, shall order judgment against the sheriff for the amount of costs.

There is a prior'act of the 25th of December 1789, ch. 42, which after reciting that plaintiffs are often willing to grant indulgence to defendants arrested on writs, of capias ad satisfaciendum, but doubts' have arisen whether such indulgence can be granted without depriving the plaintiffs of the benefits of any further execution, provides that in case of an arrest of the. defendants on any capias ad satisfaciendum, if the plaintiffs with the consent of the defendants shall elect not to call the execution during the term, at which it is returnable, the plaintiff may afterwards proceed against the defendant by a new execution. This statute has reference to the practice then existing in Maryland, for the sheriff, upon the return day of the capias ad satisfaciendum, to produce the body of the defendant,

if arrested, and for the plaintiff then to pray him to be committed. Although in its terms it applies to civil suits Only ; yet from its recognizing the course of practice in Maryland, it has a material bearing upon the present controversy ; for the act of 1777 expressly declares that on writs of capias ad satisfaciendum for fines, such proceedings shall be had as in cases where similar suits of- capias ad satisfaciendum are issued in personal, suits. And, certainly, it is in entire conformity with the exigency of the writ of capias ad satisfaciendum; which commands the sheriff at the return day to bring the party, if arrested, into court. Whether the practice under the capias ad. satisfaciendum in England is different, so that the party may be detained in jail by the sheriff after the return day without producing his body in court, and a committitur there-oh awarded by the court, it is not material to inquire; since if there be any discrepancy, the Maryland practice must govern. The cases of Christie v. Goldsborough, 1 Harr. and M’H. 543, and West v. Hyland, 3 Harr. and John. Rep. 200; go strongly to affirm the practice : and the latter certainly leads to the conclusion, that if a party is arrested and brought into court on the return day, and is not then prayed in commitment, He is no longer to be detained in custody: at least that case decides that a new capias ad satisfaciendum may issue against him, which presupposes, that he is not then deemed in custody upon the old one (a).

But the terms of the act of 1795, ch. 74 (as has been already seen), expressly require the writ of capias ad satisfaciendum for a fine to be returned into.court on the return day; and the fine either acknowledged to be paid, or the body of the party produced; otherwise judgment may be.entered up against the sheriff for the amount. It is clearly then his duty to produce the body. It is the very exigency of the writ; and when produced, the sheriff has performed the whole duty required by the precept. If the attorney-general wishes him to be committed, he is entitled to pray a commitment to be made by the court. If he does not pray it,, it is difficult to perceive upon what ground it can be maintained, that the'party is any longer to be detained in the custody of the sheriff. The latter has no power to,arrest .the party, or to detain him except according to the exigency of the writ; and he has discharged himself of his, whole duty, when he has produced the body in court. His precept, in its terms, authorizes no detainer beyond the return day. Upon what ground, then, can the court infer it ?

If resort.be had to the practice, as certified to us by the clerks of the Maryland courts, it is in perfect coincidence with the natural construction of the terms of the act. They assert the uniform practice upon writs of capias ad satisfaciendum in criminal cases to be, to bring the party into court, and then to award a committitur. No instance is shown in which a party has ever been held in custody after- the return term, upon such a capias ad satisfaciendum, without a committitur. Such a uniform course of practice, is of itself very cogent evidence of the law. The practice in this district is not shown to be different. If it has not invariably conformed to ihat of Maryland, it seems to have conformed to it in almost all cases.. The only two cases produced to the contrary, are where the return was “ cepi in jail;” and the circumstances of these particular cases are unknown. The parties may. have been already in jail on execution, or under other sentences.

And independent of the plain import of the writ of capias ad satisfaciendum, there may be. sound reasons for requiring the body to be produced in court. The capias ad satisfaciendum may have issued irregularly; the party may have paid'the fine; he may have received a pardon subsequently to its award; or he may have other matters to urge against a commitment. The remark of the court in Turner v. Walker, 3 Gill, and Johns. Rep. 377, 385, upon' an analogous writ, is very applicable here. “ It is proper and necessary,” say the court, “ to the security of the defendant, that it should be returned in term time, in order that he may have a day in court to protect his rights.” Indeed, as the statute and the precept of the process both require this course, it is incumbent upon those who contend that it may be dispensed with, or is unnecessary, to show some ground of authority or principle upon which the argi. nent can be maintained. 'We have not been able to find any.

It has been said, that where the party convicted is already in custody when the sentence is passed, the party is to be deemed in custody until the fine is paid, without any award of a commitment in the sentence, or the issuing of any capias ad satisfaciendum. We know of no authority justifying this position, either at the common law or under the laws of Maryland. On the contrary, the act of Maryland of 1777, ch. 13, plainly allows a discretion in the court to commit or not to commit, for the fine. The omission to award a commitment, as a part of the sentence, is manifestly an exercise of such a discretion. Unless a committitur be. awarded, which can only be when the party is in court(a), there must, as has been seen, be a capias pro fine by the common law, and by the laws of Maryland a capias ad satisfaciendum, to justify his arrest and detention.

The capias ad satisfaciendum then, in this case, was properly .awarded. It was a necessary process to recover the fine. The difficulty is, that no return was ever made to the court at the return day by the marshal, nor indeed until long after the marshal’s office had expired. Watkins was never brought into court, nor committed by the order of the court. He is now held in jail, and has, eyer since the return term, been held in jail solely upon the capias ad satisfaciendum, which became functus officio after the return day. He might. have been arrested and detained in jail, if he had not been previously in custody, until the return day; but his detention afterwards, was not, in our judgment,, justified by the process. In every view which we have been enabled to take of the case, we cannot find any principle or authority to justify his detention. Doubtless the detention has been in entire good faith, under a mistake of the law.- But this cannot vary the results.

We are accordingly of opinion that the writ of habeas corpus ought to issue, as prayed for.

See I Chitty’s Crim. Law, ch. 16, p. 721; Dalton’s Sheriff, ch. 33, p. 159; 4 Chitty’s Crim. Law, ch. 16, p. 373.

See also Evans’s Harris’s Entr. vol. 2d, p. 313, No. 40; Fulton v. Wood, 3 Harr. and M’H. Rep. 99 ; Dyer v. Beatty, 3 Harr. and M’H. Rep. 219

{a) See 1 Chitty’s Criminal Law, 695, 696.