Weddington v. Sloan , 54 Ky. 147 ( 1854 )

Judge Simpson

delivered the opinion of the Court-

On the petition of Sam Sloan, who represented himself to be a free man of color, the Judge of the Pike County Court issued a writ of habeas corpus, directed to Weddington and others, requiring them forthwith to bring said man before him at the court house in Pikeville, together with the cause of his detention.

Upon the return of the writ, the persons summoned to show cause why they detained the petitioner in custody appeared and asserted a right to do so, on the ground that he was a slave, belonging to the estate of James Sloan, deceased; part, of them claimed him as the heirs of Sloan, and the others as. purchasers from some of the heirs.

1. The jurisdiction of this court extends only to revising the final orders and judgments of inferi- or courts — not to the orders and judgments which judicial officers are authorized to make out of court. The decisions upon writs of habeas corpus are not required to take place in court, and cannot be appealed from. 2. The consent of parties that a writ of habeas corpus issued by a county judge shall be returned before a circuit judge in court and there decided, will not give to the decision of the judge such a character as will authorize an appeal from the decision to this court.

The judge of the Circuit Court proceeded under the writ to-try the question of the petitioner’s right to freedom, and upon a full investigation of the merits of the question, decided that he was free, and ordered him to be discharged from custody. From that order the persons claiming him to be a slave prayed an appeal, and having brought the case into this court, its jurisdiction is objected to. This question of jurisdiction is the principal one in the case.

The jurisdiction of this court only extends to the final orders and judgments of inferior courts, and not to the orders or judgments which judicial officers are authorized to make out of court. The proceedings upon a writ of habeas corpus are not required by the statute to take place in court, but the officer who issues the writ may require it to be returned and may hear and determine the matter at any place he may designate. The order that he makes on such an occasion is merely the order of the judge or justice, and not an order of court; it cannot therefore be appealed irom.

The writ of habeas corpus is intended to furnish a speedy and summary remedy for illegal confinement, and a suspension of the order of the judge who hears and determines the matter, by an appeal to this court, might in a great degree frustrate the whole object and design of the proceeding. Whether therefore we confine ourselves to the letter of the statute defining the appellate jurisdiction, of this court, or by taking a more comprehensive view of the subject look to the consequences of the exercise of such a jurisdiction in a case of this kind, the conclusion must be, that this court has no jurisdiction, and that the Legislature did not intend that • an appeal should lie in such a case.

But it is contended that although an appeal may not lie in an ordinary case from the order of a judge disposing of the matters that may arise on the return of a writ of habeas cerpus before him, yet a different principle should prevail in this case, inasmuch as it appears from the record that it was actually heard and decided in court. It is true that the writ, although issued by the judge of the County Court, and made returnable before him, seems to have been, by consent of parties, brought before the circuit judge, and the matters arising thereon to have been tried by him. It also, according to the record, purports to have been a proceeding in court. The whole matter however was tried by the judge without the intervention of a jury, in the same manner he would have tried it at his chambers. It was not an action in court, but was in reality a trial by the judge of the writ of habeas corpus, and nothing more. The form it was made to assume did not essentially change the nature of the proceeding, but it remained substantially the same that it would have been if it had been carried on at any other place. As the law does not require the writ to be returned or the matters arising thereon to be tried in court, it cannot be admitted that the judge can, by selecting the mode of trial, impart to the order that he may make a character which will determine the right of the parties to an appeal. But whether he makes the order in court or out of court, its legal effect is precisely the same. An appeal will not lie from it in either case.

3. The writ of habeas corpus is not an appropriate proceeding to try the right to freedom. Though the judge may release from custody, the right to freedom will not be established, nor the record prima facie evidence of right to freedom. Thejudge in such cases should make such orders as will secure the party claiming freedom an opportunity of having his right fairly determined.

The writ of habeas corpus is not an appropriate proceeding for the trial of the right to freedom. The decision of the judge or justice, upon the return of the writ, may operate to discharge a person held in slavery from the custody of those who may have him in possession, but it does not establish his right to freedom; nor can the proceedings under the writ be used even as prima facie testimony of the existence of the right in an action brought to assert it. He may be again taken into possession by the claimant, and held as a slave, after he has been discharged, and another officer, if he should again resort to a similar writ, might conclude that he was rightfully beld in slavery and refuse to discharge him. This principle was substantially recognized in the case of Maria vs. Kirby, 12 B. Monroe, 550.

Upon the return of a writ of habeas corpus, if it should appear that the petitioner is held in slavery, and asserts a right to freedom, and there seems to be any reasonable grounds for the claim, the judge, instead of undertaking to investigate the question himself, should only make such an order as would enable the petitioner to bring an action and have an opportunity afforded him of establishing the right which he claims. The proceedings on a ' writ of habeas corpus may be ex parte, and carried on without the knowledge of the persons directly interested in the decision. Wherever therefore a question of freedom or slavery arises, its decision shouldbe referred to the proper tribunal, upon an investigation conducted according to the forms of law, in an action instituted for that purpose.

We are therefore of opinion that this court has no appellate jurisdiction in the present case. Wherefore, the appeal is dismissed.