man and respect than that of the English people? Or have we Ex parte Bollno need of a tribunal, for such purposes, raised by its Swartwout. rank in the government, by its independence, by the character of those who compose it, above the dread of power, above the seductions of hope and the influence of fear, above the sphere of party passions, factious views, and popular delusion? Of a tribunal whose members, having attained almost all that the constitution of their country permits them to aspire to, are exempted, as far as the imperfection of our nature allows us to be exempted, from all those sinister influences that blind and swerve the judgments of men-have nothing to hope, and nothing to fear, except from their own consciences, the opinion of the public, and the awful judgment of posterity? It is in the hands of such a tribunal alone, that in times of faction or oppression, the liberty of the citizen can be safe. Such a tribunal has the constitution created in this court, and can it be imagined that this wise and beneficent constitution intended to deny to the citizens the valuable privilege of resorting to this court for the protection of their dearest rights? On this ground alone the question might be safely rested; but there is another, not stronger indeed, but perhaps less liable to question. Congress has expressly given this power to this court, by the 14th section of the act of 24th September, 1789, commonly called the judiciary act. This section, according to its true grammatical construction, and its apparent intent, contains two distinct provisions. The first relates to writs of scire facias and habeas corpus ; the second to such other writs as the court might find necessary for the exercise of their jurisdiction. As to writs of scire facias and habeas corpus, which are of the most frequent and the most beneficial use, congress seems to have thought proper to make a specific and positive provision. It was clearly and obviously necessary that such writs should be issued, not merely to aid the court in the exercise of its ordinary jurisdiction, but for the general purposes of justice and protection. The authority, therefore, to issue these writs, is posi tive and absolute; and not dependent on the consideration whether they might be necessary for the ordinary jurisdiction of the courts. To render them dependent on that consideration, would have been to deprive the *83 Ex parte Boll- courts of many of the most beneficial and important Swartwout. powers which such courts usually possess. man and *84 But the legislature foresaw that many other writs might, in the course of proceedings, be found necessary for enabling the courts to exercise their ordinary jurisdiction, such as subpanas, writs of venire facias, certiorari, fieri facias, and many others known to our law. To attempt a specific enumeration of these writs might have been productive of inconvenience; for if any had been omitted, there would have been doubts of the power to issue them. Congress, therefore, instead of a specific enumeration of them, wisely chose to employ a general description. This description is contained in the words, "all other writs which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." *The true grammatical construction of the sentence accords with this construction. The words of restriction or description ("which may be necessary for the exercise of their respective jurisdictions," &c.) stand here as a relative, and must refer to the next antecedent. There are two antecedents: 1st. "Writs of scire facias and habeas corpus," and, 2d. "All other writs." The second is the next antecedent to which, of course, the relative terms "which be may " &c. must necessary,' relate and be confined. Those words, therefore, cannot, either in grammatical construction, or according to the plain object of the legislature, be considered as restricting the grant of power in the first part of the sentence; but, merely as explaining the extent of the power given in the second part. It is clear, then, that this section bestows on this court the power to grant writs of habeas corpus without restriction. Does this power extend to the application now before the court? The term habeas corpus is a generic term, and includes all kinds of writs of habeas corpus; as well the writ ad subjiciendum, as ad testificandum, or cum causâ, &c. But the 33d section of the same act must remove all doubt upon that point; for when it gives this court power to admit to bail in cases punishable with death, and commands this court to use their "discretion therein, re man and garding the nature and circumstances of the offence and Ex parte Bollof the evidence," it takes it for granted that the prisoner Swartwout. is to be brought before the court for the purpose of inquiring into those circumstances. If this section does not give the power, it shows at least that the legislature considered it as given before by the 14th section. Again, the latter part of the 14th section gives to each of the justices of this court, and of the district courts, the power for which we contend. It cannot be presumed that congress meant to give each judge singly a power which it denied to the whole court. That it confided more in the individual members of the court than in the court itself. That it considered the weight, dignity, character, and independence of each individual *member, as a more firm barrier against oppression. than those of the tribunal itself, sitting for the exercise of the highest judicial functions known to our law. This part of the statute is remedial and beneficial to the subject, and it is a sound maxim of law, that such statutes are to be construed liberally in favour of liberty. Considering it as settled that congress intended to give this court the power to issue writs of habeas corpus ad subjiciendum, the next question is, whether congress had authority by the constitution, to confer that power? The authority of congress must be tested by the constitution, and if they should appear to this court to have exceeded the limits there prescribed, this court must consider their act void. The power of the judiciary to collate an act of congress with the constitution when it comes judicially before them, and of declaring it void if against the constitution, is one of the best barriers against oppression, in the fluctuations of faction, and in those times of party violence which necessarily result from the operation of the human passions in a popular government. In the violence of those political storms which the history of the human race warns us to expect, this shelter may indeed be found insufficient; but weak as it may be, it is our best hope, and it is the part of patriotism to uphold and strengthen it to the utmost. But it is a power, of a delicacy inferior only to its importance; and ought to be exercised with the *85 Ex parte Boll- soundest discretion, and to be reserved for the clearest Swartwout. and the greatest occasions. man and *86 The question whether congress could confer upon this court the power of issuing the writ of habeas corpus ad subjiciendum, depends upon another question, viz. whether this power or jurisdiction be in its nature original or appellate. The original jurisdiction of this court being limited to certain specified cases, of which this is not one, it follows, that if the issuing such a writ of habeas corpus be an exercise of original jurisdiction, *the power to issue it cannot be conferred on, or exercised by, this court. This principle was established by the case of Marbury v. Madison, (ante, vol. 1. p. 175.) where the court said that "to enable this court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms; and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true. Yet the jurisdiction must be appellate, not original. 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. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer, for the delivery of a paper, is in effect the same as to sustain an original action for that paper; and, therefore, seems not to belong to appellate, but to original, jurisdiction." This passage needs no comment. The criterion which distinguishes appellate from original jurisdiction is, that it revises and corrects the decisions of another tribunal; and a mandamus may be used when it is for the accomplishment of such a purpose. The object of the habeas corpus now applied for, is to revise and correct the proceedings of the court below, (under whose orders the prisoners stand committed,) so far as respects the legality of such commitment. If that court had given judgment against the applicants in the sum of one hundred dollars, the power to revise that judgment would have been appellate, and might have been given by congress to this court. man and From a decision which might take a few dollars from Ex parte Bolltheir pockets they might be relieved. Shall the relief Swartwout. be rendered impossible because the decision deprives them of all that can distinguish a freeman from the most abject slave, of all that can render life desirable? If the question, respecting the power of this court, under the constitution and the act of congress, if not *under the common law, to issue the writ of habeas corpus ad subjiciendum, were still open, it ought, on these principles and authorities, to be decided in our favour. But it is not open. It has been twice solemnly adjudged in this court. First in the case of Hamilton, 3 Dall. 17. not long after the court was organized; and very recently in the case of Burford. (Ante, vol. 3. p. 448.) We contend that the case is settled by these decisions, and that it is no longer a question whether this court has the power which it is now called upon to exercise. The exercise of this power, the benefit of these decisions, the protection of the law thus established, we claim as a matter of right, which this honourable court cannot refuse. Shall it be said that no part of our law is fixed and settled, except what is positively and expressly enacted by statute? On the contrary, is it not certain that by far the greatest portion of that law on which our property, our lives and our reputation depend, rests solely on the decisions of courts? Shall it be said that all this important and extensive branch of the law is uncertain and fluctuating, dependent on the ever varying opinions and passions of men, and liable to change with every change of times and circumstances? Shall it be said that each individual judge may rightfully disregard the decisions of the court to which he belongs, and set up his own notions, his prejudices, or his caprice, in opposition to their solemn judgment? This is not the principle of our law; this is not the tenure by which we hold our rights and liberties. Stare decisis is one of its favourite and most fundamental màxims. It is behind this wise and salutary maxim that courts and judges love to take refuge, in times and circumstances that might induce them to doubt of themselves, to dread the secret operation of * 87 |