George Holmes, Plaintiff In Error v. Silas Jennison, Governor of the State of Vermont and John Starkweather, Sheriff of the County of Washington, In the Said State of Vermont, and Their Successors In Office Defendants In Error

Citation10 L.Ed. 579,14 Pet. 540,39 U.S. 540
Decision Date01 January 1840
CourtUnited States Supreme Court

IN error to the Supreme Court of Judicature of the State of Vermont.

On the 19th of July, 1839, George Holmes presented a petition to the Supreme Court of the State of Vermont, then in session, setting forth that he was in the custody of John Starkweather, sheriff of the county of Washington, in the common jail of Montpelier, under a warrant bearing date the 16th of April, 1839, issued by Silas H. Jennison, Governor of Vermont; and that he was unlawfully imprisoned and restrained of his personal liberty. He prayed for a writ of habeas corpus to be directed to the sheriff. The writ was issued, and the sheriff returned that he had the body of the petitioner before the Court, and that he held him in custody under the following order from the Governor of the state of Vermont:


'To John Starkweather, Esquire, Sheriff of the County of Washington, greeting:

'Whereas, George Holmes, late of Sorel, in the province of Lower Canada, is now detained in the common jail in said Washington county, and under your custody, by reason of a certain charge of felony, sustained by indictment found by the grand jurors of the district of Quebec, in said province, to wit: That the said George Holmes, on the 31st day of January, 1839, at the parish of St. Louis of Kamouraska, in said district, did feloniously kill and murder one Louis Paschall Achille Tache; and whereas, the said George Holmes, not being a citizen of the state of Vermont, or of any of the United States, but a citizen of the said province of Lower Canada, and has come into this state from the said province of Canada, and the offence, whereof he is charged as aforesaid, having been committed within the jurisdiction of said province, it is fit and expedient that he, the said George, be made amenable to the laws of said province, for the offence aforesaid:

'You are therefore required that, as soon as may be after the 27th day of (instant) April, the body of the said George Holmes, now in your custody, you convey and deliver to William Brown, the agent of Canada, or to such person or persons as, by the laws of the said province, may be authorized to receive the same, at some convenient place on the confines of this state and the said province of Canada; to the end, that he, the said George Holmes, may be therein conveyed to the said district of Quebec, and be there dealt with as to law and justice appertains.

'Hereof fail not, but of your doings in the premises make due return.

'Given under my hand, at Shoreham, this 16th day of April, 1839.


'Governor of Vermont.'

On the hearing of the habeas corpus before the Supreme Court of Vermont, evidence was produced which showed that George Holmes was a native citizen of the United States, having been born in the state of New Hampshire.

A correspondence between C. P. Van Ness, Esq., the Governor of the state of Vermont, in the year 1825, with the executive of the United States, was also given in evidence. In March, 1825, the Governor of Vermont forwarded to Mr. Clay, the Secretary of State of the United States, a communication addressed to him by 'the acting Governor of Canada,' stating that two soldiers of a British regiment, who had committed a robbery on two officers of the regiment, were then in confinement in jail in Burlington, Vermont, and asked that the offenders should be delivered up to a person to be authorized to receive them, to be brought to justice in the province of Canada. The Governor of Vermont, in the letter to the Secretary of State, expresses his readiness to attend to any directions the Secretary of State of the United States might please to give on the subject. The reply of Mr. Clay, which was transmitted by Governor Van Ness to the acting Governor of Canada, states: 'I am instructed by the President to express his regret to your Excellency, that the request of the acting Governor of Canada cannot be complied with under any authority now vested in the executive government of the United States; the stipulation between this and the British government, for the mutual delivery of fugitives from justice, being no longer in force; and the renewal of it by treaty, being, at this time, a subject of negotiation between the two governments.'

A motion was made for the discharge of the prisoner upon the ground of the insufficiency of the cause alleged for his detention, as being at variance with the provisions of the Constitution of the United States; and after a hearing of the case, the Court rendered judgment against the application, and ordered the prisoner to be remanded. George Holmes prosecuted this writ of error.

The case was argued by Mr. Van Ness, for the plaintiff in error No counsel appeared on the part of the defendants.

Mr. Van Ness, for the plaintiff in error.

The case in the record now before the Court presents two general questions. First, has this Court jurisdiction? And, secondly, if it has, is the judgment complained of erroneous?

The question of jurisdiction depends essentially upon the provisions of the Constitution of the United States, defining the powers of this Court, and upon the 25th section of the judicial act of 1789, prescribing the mode in which the judgments of state Courts, in certain cases, can be here re-examined. But before entering upon this field, it may be proper briefly to advert to the principles of the common law as it regards the prosecution of writs of error.

It appears never to have been judicially settled in England whether this writ would lie where a judgment had been rendered on the return to a habeas corpus; though the point, in one or two instances, has been incidentally alluded to, while in another it was directly agitated, but without any decisive result.

In the case of Wagoner, called the case of the city of London, reported in 8 Coke, 253, there was an objection made to the return upon a habeas corpus, that it consisted too much in recital, instead of being more direct and certain; and the Court answered, that it 'was not a demurrer in law, but a return on a writ of privilege, upon which no issue could be taken or demurrer joined; neither upon the award would any writ of error lie, the return being to inform the Court of the truth of the matter in which such precise certainty is not required as in pleading.'

In the case of the King vs. The Dean and Chapter of Trinity Chapel, in Dublin, reported in 8 Modern, 28, and in 1 Strange, 536, a writ of error was brought to the King's Bench, in England, to reverse a judgment of the King's Bench in Ireland, awarding a peremptory mandamus, and it was decided that error would not lie. In the first-mentioned report of this case, the Court is represented as saying: 'It is against the nature of a writ of error to lie on any judgment but in causes where an issue can be joined and tried, or where judgment may be had upon a demurrer and joinder in demurrer, and therefore, it would not lie on a judgment for a procedendo, nor on the return of a habeas corpus.' By the report of Strange, which is much more full, and doubtless, more correct, it appears that on the first argument of the case, the judges doubted as to whether the writ of error could be brought, some of them leaning one way, and some the other way. But after a second argument, they agreed that the writ could not be sustained. Nothing, however, is said about a writ of error on a habeas corpus, except that one of the judges inferred from the form in which the judgment was entered in the case of the Aylesbury men, (of which I shall presently take notice,) that that case was not thought to be one in which a writ of error could be brought. And upon looking into the reasons assigned for the decision, it will be seen, that the principal one was the omission of the words, 'ideo consideratum est,' in the entry of the judgment.

Here let it be observed, that in neither of the two cases referred to was there a question, whether a writ of error would lie in the case of a habeas corpus; and therefore, that whatever may have been said by the Court in either of them, upon this point, was foreign to the subject before them, and cannot be entitled to the weight of authority. And it should be particularly noticed, that the principal reason upon which the last-mentioned case was finally decided, was the omission of the words, 'ideo consideratum est,' in the entry of the judgment; thus placing the question, whether the decision of the Court constituted a regular judgment, upon the particular words made use of in entering such decision on the record, instead of determining that point from the nature and effect of the decision so given.

But there remains the case of the Aylesbury men, in which the question which we are now discussing, directly arose. This case occurred in the first years of the reign of Queen Anne, and is reported in 2 Salkeld, 503, and in 2 Lord Raymond, 1105, and also in Holt, 526. There was a commitment by order of the House of Commons, of certain persons, for an alleged contempt, in having commenced an action against the constables of Aylesbury, for refusing to take their votes at an election for members of Parliament. The prisoners were brought before the Court of King's Bench, by a writ of habeas corpus, and three of the four judges held, that the commitment was legal; but Holt, Chief Justice, declared the contrary.

A writ of error to the House of Lords upon this judgment, having been applied for, the House of Commons insisted that none ought to be granted, while the House of Lords took the opposite side. The latter condemned the course pursued by the Commons, and requested of the Queen, 'that no consideration what ver should...

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