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MVB, Court Brief, February 1811

Court of Errors

John Van Ness Yates


John Lansing Junr.

Brief for Argument Feby Term


This action is founded in that part of the Habeas Corpus act which prohibits a person once discharged by Habeas Corpus from being recommitted &c.

The words are

1 Vol. R Laws 288, "That no person who shall be set at large upon any Habeas Corpus shall be again imprisoned for the same offence unless by the legal order or process of the court wherein he is bound by recognizance to appear or other court having Jurisdiction of the cause and if any person shall knowingly contrary to this act recommit or imprison or cause to be recommitted or imprisoned for the same offence or pretended offence any person so set at large or shall knowingly aid or assist  therein he shall forfeit to the party grieved $1250 any colorable pretence or variation in the Warrant of Committment notwithstanding &c. 

First To Entitle himself to Judgment the Plaintiff shews and it is admitted by the pleadings.

Ist. That he was on the 18th. day of August 1808 arrested by Virtue of a Writ of attachment for the Court of Chancery & committed.

IId That on the 19th. day of August 1808 the said John V N Yates was set at large by Ambrose Spencer Esquire one of the Justices &c on a habeas Corpus duly allowed &c. 

IIId. That by Virtue of an order made by the Defendant he was on the 12th. day of September 1808 again imprisoned & recommitted for the same offence.

Second These <facts> making out a discharge & Recommitment according to the Statute and establishing the right to the penalty unless the Defendant can exhonerate himself. 

Ist.  By bringing himself within the exception of the Statute or 

IIdly. By setting up a defence arising aliunde.

The Exceptions are

I at Committment by the legal order of the Court wherein he is bound by Recognizance to appear. 

2dly. or the Court having Jurisdiction of the cause. 


Ist. The first is not pretended to be set up.

2d The Second is untenable, this court having decided in this case That

            Ist. That by the court having Jurisdiction of the cause is intended a Jurisdiction acquired by the Recognizance or its general criminal Jurisdiction viz the Courts of General Session or courts of oyer & Terminer.

6th Johnsons Reports 

512. Clinton Senator <deling> the opinion of the court} after stating the nature of the recognizance & the different Courts of Sessions & oyer & Terminer says.

"If therefore the prisoner is recognised to appear at the General Sessions and is convicted there or if after being recognised to appear there his cause is tryed in the oyer & Terminer he may be imprisoned as the Justice of the case may demand. "But by no other tribunal or magistrate whatsoever.

Third <Thus> we see the Court of Chancery had no right to recommit under the Statute, and so it ought to be


1st. The Statute was passed for the promotion & security of personal liberty and should be liberally construed.

2d. It was intended in the cases enumerated to set the prisoner at large, if the persons who had the authority to allow ^a^ Habeas Corpus <that> his imprisonment illegal until his trial securing his appearance by Bail. 

3d. The discharge under the habeas Corpus is a reversal of the order of Committment by authority of Law, & if the officer of magistrate committing could recommit the Habeas Corpus act would be a nullity. 

4th. From the high personages to whom the right of discharging or H. C. is delegated the Legislature did not suppose it would be <released>. That if they discharged, there must at least exhist doubt as to the legality of the commitment & such doubt exhisting, humanity & policy <dictattes> & the Habeas Corpus act was intended to enforce it, That the prisoner should be at large on Bail (except in the case excepted.) 

Third Groud

2d Spencer 102

4th Johnson 513,

1st. Admitting chancellor had right to recommit it must be by legal order process, an order is not a legal process.

Defence arising aliunde which will probably be resorted. 

Ist. That the discharge of Judge Spencer was a nullity.

2d That the Defendant acted as a court and as such was not responsible civilly.

3d That though he might be responsible as for a tort that this Statute giving the penalty speaks of persons & does not allude to a court. 

6th. Johnson 511. First Point, That Judge Spencer had a right to discharge, that his discharge was proper & conclusive has been settled by the court in the case of Yates V. The People.

Second Point This is by far the most important & in fact the only serious question in this cause. 

In discussing this point it will be proper to consider in two points of view viz.

Ist. Would the chancellor be responsible at Common law as for false Imprisonment.

2dly. If there should be doubt on this subject <as> ^did^ not the Statute intend to create a Judicial responsibility for the penalty in this particular case. 

Ist. That the conduct of Courts is to be literally construed and that as far forth is consistent with the protection of Individual rights Their Judgments are to be left unfettered by Individual responsibility is not denyed.

2d. That that irresponsibility must however have some Limits appears to me necessarily to place from the nature of our Government & civil institutions and its indispensible necessity to the maintenance of those rights they were established to support.

3d That when that responsibility exists to be compleat, it must extend as well to the Individual Injured as to the public, it being a wrong unjustifyable in its nature all the Injurious consequences which flow from it must be remedyed it.

4th. We will shew by the authorities that an unlimited irresponsibility has never been claimed for Judges nor under and the least reflection must convince that it should not be. 

Suppose the Chancellor, having no criminal Jurisdiction should arraign try condemn fine & imprison an Individual, could it be tolerated that so great an outrage on the constitution and individual rights could be Justifyed or even palliated by the Suggestion that he acted as a court.

The privilege then must be limited and its proper limit is this "Where the Judge has Jurisdiction of the Subject matter & he errs in Judgement" he is not liable except in case a particular liability should be created by Statute. This secures all the rightfull privileges of a Judge & avoids all the <Iniqutous> consequences which might result from the opposite doctrine. 

First this is the extent to which impunity has been maintained a recurrence to all the authorities will prove.

Produce these authorities

Ist. Madden, 119 Bushels case

     Do           184 Hammond agt. The Recorder of London

X 2d Madden 219 Same case

X 12th. Madden 388 Grenville Vs. The College of Physicians

X 1st Salfield 396 Same case

Cowper 172           <Fabrique> vs. Mayston

2d Bacon 97 citing the case in Salfield

12th. Madden 25

<PM> authorities

Cowper 645 <Crises> V Durder & an other; <Trespass> his agt. a Justice of the peace for the separate convictions where but one penalty has attached because he exceeds his Jurisdiction.

1st. Law Reports 493. Sutton V. Johnstone.

1st. Lord Raymond 468, 470, 767, Impunity to Judges placed on the ground of their having Jurisdiction.

10th. Cokes Reports 76 2d Reason.

2dly. it was resolved that the action well lies against the defendant and a difference was taken when a Court has Jurisdiction and proceeds inverso ordine or erroneously, there the party who sues or the officer or minister of the court who executes the process of the court no action lies against them. But when the court has no Jurisdiction of the cause there the whole proceeding is coram non Judice and actions will lie against them without ^any^ regard of the precept or process. For the rule is "who ever shall do any thing by the command of a Judge shall not be held to act by collusion because there is necessity to obey him" but when he has no Jurisdiction, the necessity to obey him more than a Stranger for the rule then is "Judgment given by one who is not a Judge it is nof no weight."

1st. L^e^onard 323 an action lies agt. a Justice of the peace for refusing to take an oath of a Robery committed and yet it was objected he acted as a Judge.

Grot Authority for this I believe it is in Bacon Suppose a habeas Corpus issued to an inferior court & they proceed afterwards, would not the proceeding be coram non Judice & void if Execution issue, they would be trespassers. This shewes that when Jurisdiction ceases Responsibility commences, when they exceed their Jurisdiction they act as private Jurors & their office cannot shield them & it would be a gross pretension of all right if it should. 

 Chief Justice Kent in his opinion in this very cause assumes this ground expressly, he says,

5 Johnson 209 "It is sufficient that the Court which commits has Jurisdiction of the cause of committment and in the cause in this case was an alluded malpractice of contempt the court of chancery most undoubtedly had Jurisdiction of the subject matter

again same page "The Plaintiff was recommitted to use the language of the order for Contempt and mal practice & whether the court of Chancery was right or wrong & considering that PM conduct amounted to a contempt & whether it took the proper step to ascertain the contempt is prefectly immaterial as to the point of Jurisdiction.

Nor was the Chancellor Ignorant of this rule for in one of his opinions on this subject <page> he says speaking of the Interference of Mr Justice Spencer

page 105 of the printed case of John Van Ness Yates by Johnson  "upon my Judicially determining that the Interference of a single Judge to obstruct the process & impede the Justice of this court was unwarranted that his proceedings were coram non Judice it followed as a necessary consequence that his reiterating his interference might or might not according to circumstances be imputed to him as a contempt of this court for though a Judge acting in the Sphere of his Jurisdiction an cannot unless actuated by corrupt motives be impeached or questioned it is otherwise where such Jurisdiction does not exhibit he is then exposed to be treated as a contemner of the court with whose process he interferes.

Had then the Chancellor when he recommitted Mr Yates Jurisdiction, did he act (in his own Language) "within the Sphere of his Jurisdiction. 

I To ascertain this point it would be highly disrespectfull to this court to search for authorities upon any point which they have explicitly decided. 

6th. Johnson 505 2d In the cause of Yates V. The People to <illegible> This court explicitly decide the Court of Chancery had no Jurisdiction of the offence for which Mr Yates was first <arrested> committed "that he acted under a usurped Jurisdiction" and in page 512. They expressly decide that the Judge had a right to discharge, that after his Discharge the Court of Chancery had no further concern with the prisoner had no right to recommit or no Jurisdiction over him. 

There is one more point of view in which this cause is to be considered, whatever doubt might exhist respecting the Chacellors liability to an action for False imprisonment, there can be no doubt but the penalty was intended to attach to a Judicial officer who interfered with the privilige intended to be secured by ^the^ Habeas Corpus act in the name forbidden by the act. 

Ist, It will not be denyed but the Legislature has a right to attach a penalty to a Judicial officer for misconduct. 

2d. The Phraseology of the act is calculated to support this position it is any person shall recommit or imprison or cause to be recommitted or imprisoned.

3d By the Immediately preceding section the same penalty is attached to the Judges or chancellor for refusing to allow a Habeas Corupus. 

4th. The object of the power given to the Judge <illegible> in vacation was to prevent any imprisonments during the recess of courts to prevent recommitment for the same offence was as important as to obtain a discharge without it the discharge would be a "holding the word of promise to the ear & breaking it to the senses.

5th. The reason why in the one case the persons as ^to^ whom the penalty is to attach are particularly named & not in the other is that the right to discharge is committed to <few>, to commit to thousands & the inaction of their State offices would fill a volume. 

6th. The last part of the section clearly shewes it application "any variation in the warrant of Commitment" this could not be supposed to be done by any other than the magistrate. 

7th. The Importance of the right intended to be secured produced all the caution responsibility & restriction contained in the <Statute>

Court for the Trial of

Impeachment & Correction

of Errors

John Van Ness Yates


John Lansing Junr.




Source: DLC Library of Congress
Collection: MVB Papers (DLC)
Series: Series 1 (5 December 1782-31 December 1811)