In re Winder

30 F. Cas. 288, 2 Cliff. 89

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1862
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

This is a petition for a writ of habeas corpus, wherein the petitioner represents that for a long time past he has been confined in Fort Warren, a military fort of the United States, in this district, under the command of Colonel Justin Dimmick, where and by whom he is illegally restrained of his liberty.

As a foundation of the application, and to show that the prayer of the petitioner ought to be granted, he alleges that he is and always has been a loyal citizen of the IJnlted States, and that until the time of his arrest, as therein set •forth, he had been a resident of the commonwealth of Pennsylvania, and the complaint is, that while he was so resident there he was, on the 11th of September, 1861, arrested at his residence in the city of Philadelphia, under a warrant purporting to have been issued by a commissioner of the United States, upon a charge of conspiracy to overthrow the government of the United States.

According to the petition that warrant was founded upon the act of congress of the 13th of July, 1861 [12 Stat. 255]; but the petitioner avers that he was entirely innocent of that charge or of any other offence against the United States; that he urged an immediate hearing of the case on the day of his arrest, which was refused on the ground that the district attorney had other engagements, and the same was postponed to the 13th of the same month, when he was again present, and ready and anxious to meet the charge, but that the district attorney, after stating that he had no charge to prefer against him, informed him that an order had been received that he should be delivered to the marshal of the United States for that district; that he was accordingly discharged by the commissioner, and was then and there, without any warrant or cause of commitment being exhibited to him or to his counsel, immediately seized and taken into custody by William Millward, marshal of that district. When the district attorney, however, informed the petitioner that an order had been received that he, the petitioner, should be delivered to the marshal, he at the same time, as the petitioner states, handed to his counsel, who was present with him, a telegraphic despatch, addressed to the district attorney, of the following purport:—

“Have telegraphed Marshal Millward to arrest Wm. H. Winder, and transfer him to Fort Lafayette. S. Cameron, See’y of War.”

Recurring to the copy of the telegram as given in the petition, it will be seen that it was dated at Washington on the 11th of September, 1861, two days before the petitioner was taken into custody by the marshal; and the petitioner states that on the same afternoon that he was so seized, he was removed to the city of (New York, by a person believed to be a deputy or officer of the marshal, and upon reaching that city was carried to Fort Lafayette, a military fort of the United States, under an order of which the following 'is a copy:—

“Permit me to introduce to you my deputy, Mr. Sharkey, who carries with him Mr. Winder, to be delivered to your custody per order of the secretary of war.”

Said order or letter was dated at Philadelphia on the 13th of September, 1861, and was addressed to the commandant of Fort Hamilton, and was signed by the marshal.

Having stated these proceedings, the petitioner avers that he has never seen the order or pretended order of the secretary of war, and, for reasons set forth in the petition, he does not believe that any such order ever existefi, but that he remained in Fort Lafayette, so unlawfully restrained of his liberty, under color of some order or pretended order of the secretary of war or of some other person, until some time towards the last of October or the first of November, 1861, when he was transferred, under some order or direction to him unknown, to the military fort before mentioned in this district, under the command of Colonel Justin Dimmick, in which place he has ever since been detained in custody, and now is unlawfully restrained of his liberty.

On the 5th of December, 1861, he addressed a letter to the secretary of state, soliciting leave to visit Washington, on parole, for the examination of his case, or that he might be furnished with a statement of the charges against him; but as no reply was received to the communication, it will not be reproduced at the present time. Failing to get any reply to that letter, on the 22d of February, 1862, he addressed another letter to the present secretary of war, but, so far as appears, the communication was never answered. Believing it to be impossible that the former secretary of war, General Simon Cameron, would of his own motion have authorized his arrest, the petitioner states that he, on the 15th of March, 1862, wrote to General Cameron upon the subject, informing him that it was by his order that he, the petitioner, was seized and taken from Philadelphia to Fort Lafayette, and there placed in confinement, and afterwards transferred to Fort Warren, and inquired at whose instance and upon what representations he had been induced to issue the order.

To that letter, as the petitioner states, a reply was received under date of the 24th of March, 1862; and he gives what purports to be a copy of the answer. Suffice it to say, without attempting to give the precise language,’ the writer expresses his surprise at the remark of the petitioner that it was by his order that he had been taken from Philadelphia to Fort Lafayette and placed in confinement. On the contrary, he expressly states that he knew nothing of the petitioner’s arrest until he saw the fact stated in the newspapers, and adds several circumstances confirmatory of that statement. Confirmed by that letter in the opinion that the name of the former secretary of war-had been used without his knowledge, or inadvertently, the petitioner states that on the 31st of the same month, he wrote General Cameron another letter, thanking him for his prompt reply, and furnished him witn a copy of the document under which the commandant of Fort Hamilton took charge of him and placed him in Fort Lafayette, and also a copy of his telegraphic despatch to the district attorney, which was handed to his counsel at the time he was discharged by the commissioner. Considering that the reply of General Cameron is a brief one, it will be given in the language of the copy set forth in the petition.

“Lochiel, April 2, 1862. W. H. Winder,. Esq. Sir,—I have enclosed your letter (of the 31st) received to-day, to the secretary of state, and disavowed all knowledge of your arrest, with a request for your release, if you have been held by my direction. Very respectfully, Simon Cameron.”

Various other matters are stated in the petition, which need not be particularly noticed at this stage of the case, except to say that the petitioner, in conclusion, avers that he has been nearly fourteen months unlawfully restrained of his liberty, and detained in custody, under color of some pretended authority of the United States, without any specific crime or offence being imputed to him, in disregard of the plain provisions of the constitution of the United States and the laws of congress, to the benefit of which every citizen is entitled; he accordingly prays the court to grant this writ of habeas corpus.

By the fourteenth section of the act of the 24th of September, 1789 [1 Stat. 81], it is provided, among other things, that either of the justices of the supreme court of the United States, as well as the judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of inquiring into the cause of commitment; provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Additional authority upon the subject is also conferred by subsequent acts of congress, bnt it is unnecessary to refer to any other act, as the petition in this case is obviously founded upon the before-mentioned provision of the judiciary act.

Courts of justice may refuse to grant the writ of habeas corpus where no probable ground for relief is shown in the petition, or where it appears that the petitioner is duly committed for felony or treason plainly expressed in the warrant of commitment; but where probable ground is shown that the party is in custody under or by color of the authority of the United States, and is imprisoned without just cause, and therefore has a right to be delivered, the writ of habeas corpus then becomes a writ of right, which may not be denied, but ought to be granted to every man who is committed or detained in prison or otherwise restrained of his liberty. Authorities in support of these positions are unnecessary, as wherever the principles of the common law are adopted or recognized they are universally acknowledged.

Although the petitioner was arrested, in the first place, by virtue of a warrant issued by a commissioner of the United States, still the ease, as stated in the petition, shows that he was discharged from that arrest, and that no warrant of any kind has since been issued against him. Assuming the case to be as stated in the petition, he was not only ar- ¡ rested and imprisoned under an order having no other sanction than that of a telegraphic despatch, but it now appears' from the petition that the secretary of wa/. who was supposed to have sent or authorized the telegram containing the order, denies all knowledge of the arrest of the petitioner, except as he learned the fact from the newspapers, and entirely disavows all responsibility for the proceedings. i

Nothing need be added to the narrative of the facts as set forth in the petition, to demonstrate that the petition shows probable ground to conclude that he is imprisoned and restrained of his liberty without just cause. Undoubtedly he is in custody under or by color of authority of the United States, and such being the fact, all the requisites known to the- law are shown to entitle the petitioner to the writ for which he prays; and on that state of the case, it becomes the duty of the court to grant it. When these pre-requisites appear, it is not competent for the court to deny the application, because the court has in such case no discretion upon the subject, but the writ must issue as a matter of right.

All these remarks must be understood as based entirely upon the facts as stated in the petition, and, of course, can have no application to any different state of facts which may be shown upon the return.

The United States marshal having declined to serve the writ, it was placed in the hands of B. F. Bayley, a deputy sheriff, who made the following return thereupon:—

“I, Benjamin F. Bayley, being duly sworn, do depose and say that I am one of the deputies of the sheriff of the county of Suffolk, in the commonwealth of Massachusetts; that on Tuesday, the 28th day. of October, A. D. 1862, there was placed in my hands for service a writ of habeas corpus, a copy of which is hereto annexed, directed to Colonel Justin Dimmick, commandant of Fort Warren, or to any officer under him having the charge of William H. Winder, commanding him to bring the body of said Winder, then confined in said Fort Warren, to be dealt with as to law and justice should appertain; that upon receiving said writ, I immediately proceeded to Commercial Wharf, in the port of Boston, where the steamboat plying between the said port and said Fort Warren was lying, and stated to the captain in charge of said boat, that I desired to proceed therein to Fort Warren as a messenger from the United States court, with papers for said Colonel Justin Dimmick. The said captain told me that his orders were positive not to allow any one to go in said boat without a pass from Colonel Dimmick, said orders having been received 'on Friday last, the 24th instant; that being prevented from proceeding in said boat, I did on the morning of Wednesday, the 29th day of October, 1862, receive from the counsel of said Winder, certain instructions in regard to the service of the said writ of the following tenor:—‘You are entrusted with the service of a writ of habeas corpus, issued by order of the Honorable Nathan Clifford, a justice of the supreme court of the United States, to be served upon Colonel Justin Dimmick, at Fort Warren. You will have with you the original writ, with an attested copy thex-eof. You will procure a proper conveyance to take you to Fort Warren, and land there in order to serve the writ as directed. Upon landing or meeting the sentry, or other person at the fort whom you may first meet, you will respectfully inquire for Colonel Dimmick, stating you have a paper to deliver to him from Judge Clifford, a judge of the supreme court of the United States. Should you be allowed to see Colonel Dimmick, you will respectfully deliver to him the original writ, saying at the same time, This is a writ from Judge Clifford, and at once return to Boston, when you will draw up a statement of the time and mode of service. Should the sentry or party with whom you first communicate refuse you permission to see Colonel Dimmick, you will ask by what authority you are refused; if none is stated, and the refusal be persisted in, you will hand a copy of the writ to the sentry or other party, asking him to deliver it to Colonel Dimmick, saying you will wait for an answer, and bring it if received. If this be refused, you will return at once. Should you be refused permission to land, and the refusal be persisted in upon your stating that you have a paper for Colonel Dimmick, you will at once return and make a report of what you have done. Should Colonel Dim-mick be absent from the fort, you will communicate or endeavor to communicate with the officer in command, in the manner here-inabove set forth.’ That upon receiving said instructions I hired a sail-boat in the port of Boston aforesaid, manned with two men, and was accompanied by John H. Clark, a reputable citizen of the county of Middlesex, in this commonwealth, and proceeded therein to Fort Warren, to serve the said writ according to my instructions; that I arrived near to said Fort Warren, at about three o’clock of the afternoon of said 29th day of October, when I perceived a body of about fifty armed men drawn up in military array near the place of landing; that upon nearing the landing I was hailed by a sentinel and told by him to keep off; that I then told said sentinel that I had a communication to make to Colonel Dimmick, and approached a little nearer to said landing; that the said force was then marched down to the landing, when I was again peremptorily ordered by a person in command of said force, to keep off, and was prevented from landing; that finding it impossible to land or approach nearer to the said fort, I directed the boat, in which I was, to be put about, and returned to the port of Boston, where 1 arrived at about five o’clock of the afternoon of the same day, having been forcibly prevented from serving the said writ; that I verily believe that had 1 attempted to effect a landing at said Fort Warren, after having been warned away, as hereinbefore stated, I should have been prevented from so doing by the force of armed men drawn up at the landing, and that to the best of my belief it was impossible for me to land and serve the said writ And that further I say not. Benj. F. Bayley.

“Sworn and subscribed this 30th day of October, A. D. 1862. G. S. Hillard, Justice of the Peace.”

Mr. Reed then addressed the court as follows:—“May it please your honor. Having presented to the court this affidavit, the counsel for the relator beg leave to say that we came to this jurisdiction to solicit the process of the law in order to release from a long and, as we believe, unlawful imprisonment (for nearly fourteen months), a fellow-citizen of Pennsylvania. We deferred any action until the district attorney should have full opportunity of communicating with the authorities at Washington. We came prepared, and anxious to meet and discuss any grave questions' of law which the officers of the government might raise in opposition to this discharge. The court granted the writ of relief which was asked for, but its execution has been evaded and resisted, so as to prevent the consideration and decision of these questions. In the case decided by the chief justice of the United States, that of Merriman, the military officer to whom the process was directed, made a return in form respectful; and this, too, at a time of local disturbance and on the edge of actual war. But' here in Massachusetts, many hundred miles away. from any scene of war, where perfect peace reigns, and every peaceful relation of life is maintained, and the court is regularly transacting the ordinary and profitable business of the government, here in Massachusetts, the writ which your honor granted is both evaded and resisted, and an imprisoned American citizen is denied the common right of knowing who are his accusers and of what he is accused. Your honor’s writ is that of the United States, and that peaceful writ the military force of the government prevents us from executing. At this moment we can do no more. We submit the facts this affidavit discloses. We beg to express to your honor our high sense of the kindness and consideration we have received at your hands, in this effort to assert the supremacy of the law and the rights of the citizen.”

CLIFFORD, Circuit Justice. The court does not perceive that anything more can now be done to effect service of this writ. The service appears to have been prevented by force. The court deeply regrets that officers of the United States should obstruct process out of a court of the United States, especially this process. But those officers are at present beyond the control of the law, and the court has not the command of the physical force neédful to effect a service of this writ at the present time. Let the writ be placed on file, to be served when and where service may become practicable.