In re Jackson

• Decision Date: 16 May 1867
• Court: Michigan Supreme Court
• Parties: In the matter of Samuel W. Jackson

15 Mich. 417

In the matter of Samuel W. Jackson

Supreme Court of Michigan

May 16, 1867

Heard April 30, 1867. [Syllabus Material]

In the matter of Samuel W. Jackson on petition of George W. Bissell and John Hosmer, guardians, for a writ of habeas corpus against Samuel S. Taff.

The petition set forth that the said Samuel W. Jackson was a minor, and that petitioners were his testamentary guardians and entitled to his custody; that the said Taff had caused said minor to be carried out of the state of Michgan and beyond the jurisdiction of the courts of said state, and still continued (through his wife) to keep him out of the state after service of the writ. The respondent moved to quash and set it aside for matters appearing on the face of the petition, and especially, for the reasons that he was in effect charged thereby with a criminal offense and was called to answer thereto; and that it appeared that the said infant had been, since May, 1866, out of this state and beyond the jurisdiction of the court, and had not been restrained of his liberty within the state.

Writ quashed.

Theodore Romeyn, for the respondent insisted on these grounds for the dismissal of the writ.

George V. N. Lothrop, with whom was associated D. B. and H. M Duffield, was heard for the relator, and the court overruled the motion and ordered a return.

The respondent then made the following return: "that he has not the said S.W. Jackson in his custody or under his power or restraint, and that he did not have him in his custody or under his power or restraint at the time of the application for this writ, and has not had him at any time since; and he further states that he has at no time transferred the custody or restraint of said S.W. Jackson to any person."

Mr Lothrop, for the relator, objected to the return as insufficient and moved for a further return.

Mr. Romeyn insisted that the return was sufficient; that it was in the form prescribed by the statute (2 Comp. L., § 5221), and that it was the intention of the law to allow a general form of return and denial.

Mr. Lothrop insisted that the matters alleged in the petition must be specifically answered.

The majority of the court so held, and ordered the respondent to make further answer.

The defendant thereupon made a further return, setting up amongst other things that the said Samuel W. Jackson was taken out of the state by his wife in May, 1866, being before the said writ had been issued, and had never, since that time, been within the state; and that she had been duly appointed the guardian of said Jackson by the surrogate's court of Canada, a court of competent jurisdiction in the province of Canada West; and that the child was not, when the writ was applied for, and had not been since, and was not now under the custody or control of the respondent.

To this the relators filed a traverse, denying "that said respondent did not cause said child to be taken out of this state; that the respondent has not since such taking kept said child in the care and charge of his said wife absent from the state; that said respondent has no control over said child; that respondent does not support his said wife and child beyond the limits of this state, for the purpose of keeping said child from the custody of the petitioners; that the respondent did not have the said child in his custody, or under his power or restraint, when said writ issued, that he has not had said child in his custody, or under his power or restraint, at any time since; and that he did not, at the time of said return, have said child in his custody, or under his power or restraint; these petitioners deny each and singular said averments, as made and alleged in said return, to be true, and they pray the same may be inquired of by this court."

Thereupon, respondent moved to quash the writ for want of jurisdiction, upon the case made by the papers.

On the argument, Mr. Romeyn, for the respondent, made the following points:

1. Both at common law and under the statute the writ of habeas corpus is confined to the relief of parties detained or restrained within the state. It has no application to a detention beyond the limits of the state.

Such detention is an offense against the realm where it is committed, and the courts of another country can not relieve against it.

2. The removal of the relator from the state, if unlawful, was a crime under its laws (2 Comp. L., §§ 5735-5740-1) punishable as such, even as a felony.

The crime against the people of the state was consummated when the child was removed. The further offense of unlawful imprisonment in another country is not to be remedied by this writ, issuing in the name and in behalf of the people of the state; and if the removal from the state was with intent to evade the process of its courts, then such removal was punishable as a contempt.

3. The facts in this case do not show a detention by this respondent.

4. If otherwise, the only relief in the courts of this state must be sought in equity. But,

5. The appointment of the guardian in Canada is a conclusive answer to the ruling sought by the writ, or in any form in our courts.

6. While that guardianship exists the petitioners here should go to the court in Canada and apply there for the surrender of the ward to them.

Campbell, J. Martin, Ch. J., Cooley, J., Christiancy, J. concurred.

OPINION

Campbell J.:

The question of jurisdiction presented by this motion is, whether, assuming that Taff, in May, 1866, caused the infant, Samuel W. Jackson, to be removed from this state, with the design of keeping him from the custody of his guardians, and has since that time been instrumental in having him detained beyond the state, this court has authority by the writ of habeas corpus to compel the child, who has been all this time in other territory, to be brought back to Michigan.

If the court has such authority, and if the case set up by the relators should be made out, there can be no difference of opinion as to the propriety of its exercise. The removal is charged to have been made at a time when a decision of this court was to be given, which might, and when it was made actually did, settle the rights of the testamentary guardians to have the child under their control. If the allegations should be sustained, the respondent has been concerned in a very daring violation of law, for which he should be held to a strict account.

The gravity of the charges, and the danger which must arise if such conduct can not be reached, impose upon us the duty of considering with more than common care the question of jurisdiction, where action and refusal to act involve equally serious results.

Under the constitution of Michigan the Supreme Court has jurisdiction to issue the writ of habeas corpus, and various other original and remedial writs, but in all other cases its authority is merely appellate: Art. 6, § 3. It is not doubted that the issuing of a writ of habeas corpus, when directed to bring up the body of a person not held under process, is an exercise of original and not of appellate jurisdiction. Inasmuch as the power is given in general terms, it must be held to include any recognized jurisdiction exercised through this writ heretofore, at common law as well as by statute, unless there is some inconsistency in the claim, which has not been pointed out. It is also plain that where the original jurisdiction of the court is the exception, and the appellate jurisdiction is the rule, the former can not be enlarged beyond its existing bounds.

The habeas corpus act of this state differs from the original English statute, in not being confined to persons held under charges of crime. Except in certain specified cases, in which the interference would be manifestly improper, the statute allows the writ, where the imprisonment or detention is "under any pretense whatever." But it is also confined in its operation by the same section to persons detained "within this state:" Comp. L., § 5210.

It is also easily seen from the statute that the attention of the legislature was directly drawn to cases like the present, where it may be supposed a design exists to evade the law. Section 5252 makes it a criminal misdemeanor to transfer the custody or change the place of confinement, with intent to elude service or avoid the effect of a writ. Section 5255 provides that when it is made to appear that a person is likely to be carried out of the state, a special warrant may issue to take such person, and, if the conduct charged is criminal, to arrest the custodian. But if the case is made out against the latter, there is no provision authorizing anything to be done with him except to hold him to bail, or commit him in default of bail, to answer the criminal charge: § 5258.

The statute, then, furnishes no means for reaching a case like the present; and, according to the usual rules of construction, it is fair to presume the omission was not accidental, but was based upon some adequate reason. And it can not be supposed that the possible existence of some common law application of the writ furnished any such reason, inasmuch as the statute was framed expressly to improve upon the common law, which was alleged to be deficient from the very fact that, by not compelling an immediate return, it gave parties facilities for evading the writ. This is matter of history, and is expressed in the preamble of the English statute.

The territorial statutes are all modeled in their more important features after the act of 31 Charles II., and therefore leave much to the common law. Like that statute, however, they provide expressly for cases where prisoners are sent abroad and, instead of furnishing means for reclaiming them, only...