In this case it was decided that a warrant of commitment by two
justices of the peace of the County of Alexandria must state some
good cause certain, supported by oath. The discharge of the
prisoner from confinement, the warrant being illegal, does not
prevent the justices proceeding
de novo, if the prisoner
is really a person of ill fame, and who ought to find sureties for
his good behavior.
John Arkins Burford, a prisoner confined in the jail of the
County of Alexandria, in the District of Columbia, petitioned this
court for a habeas corpus, to inquire into the cause of his
commitment, alleging that he was confined under and by color of
process of the United States, and praying for a certiorari to the
clerk of the Circuit Court of the District of Columbia, for the
County of Washington to certify the record by which his cause of
commitment might be examined, and its legality investigated. To the
petition was annexed a copy of his commitment, certified by the
Jailor of Alexandria County.
Page 7 U. S. 449
MR. CHIEF JUSTICE MARSHALL.
There is some obscurity in the act of congress, and some doubts
were entertained by the court as to the construction of the
constitution. The court, however, in favor of liberty, was willing
to grant the habeas corpus. But the case of the
United
States v. Hamilton, 3 U. S.
17, is decisive. It was there determined that this Court
could grant a habeas corpus; therefore let the writ issue,
returnable immediately, together with a certiorari, as prayed.
Upon the return of the habeas corpus and certiorari, it appeared
that on 28 of December, 1805, Burford was committed to the jail of
Alexandria County, by a warrant under the hands and seals of Jonah
Thompson, and ten other justices of the peace for that county,
which warrant was in the following words:
"Alexandria County, ss."
"Whereas John A. Burford, of the county aforesaid, shopkeeper,
has been brought before a meeting of many of the justices of the
peace for the said county, and by them was required to find
sufficient sureties to be bound
Page 7 U. S. 450
with him in a recognizance, himself in the sum of $4,000, and
securities for the like sum, for his good behavior towards the
citizens of the United States, and their property; and whereas the
said John A. Burford hath failed or refused to find such sureties;
these are therefore in the name of the United States, to command
you the said constables, forthwith to convey the said John A.
Burford to the common jail of the said county, and to deliver him
to the keeper thereof, together with this precept, and we do, in
the name of the said United States, hereby command you, the said
keeper, to receive the said John A. Burford into your custody, in
the said jail, and him there safely keep, until he shall find such
sureties as aforesaid, or be otherwise discharged by due course of
law. Given under our hands and seals, this 28th day of December,
1805."
"To any constable, and the Jailor of the County of
Alexandria."
On 4 January, 1806, the Circuit Court of the District of
Columbia, sitting in the County of Washington, upon the petition of
Burford, granted a habeas corpus, and upon the return the marshal
certified, in addition to the above warrant of commitment, that
Burford was apprehended by warrant, under the hands and seals of
Jonah Thompson and thirteen other justices of the County of
Alexandria, a copy of which he certifies to be on file in his
office, and is as follows:
"Alexandria County, ss."
"The undersigned justices of the United States, assigned to keep
the peace within the said county, to the marshal of the district,
and all and singular the constables, and other officers of the said
county, Greeting:"
"Forasmuch as we are given to understand from the information,
testimony, and complaint of many credible persons that John A.
Burford, of the said county, shopkeeper, is not of good name and
fame nor of honest conversation, but an evil doer and disturber of
the
Page 7 U. S. 451
peace of the United States, so that murder, homicide, strifes,
discords, and other grievances and damages amongst the citizens of
the United States concerning their bodies and property are likely
to arise thereby, therefore, on the behalf of the United States, we
command you and every of you that you omit not, by reason of any
liberty within the county aforesaid, but that you attach, or one of
you do attach, the body of the aforesaid John A. Burford, so that
you have him before us, or other justices of the said county, as
soon as he can be taken, to find and offer sufficient surety and
main prize for his good behavior towards the said United States,
and the citizens thereof, according to the form of the statute in
such case made and provided."
"And this you shall in no wise omit, on the peril that shall
ensue thereon, and have you before us this precept. Given under our
hands and seals in the county aforesaid this 21 December,
1805."
The circuit court, upon hearing, remanded the prisoner to jail,
there to remain until he should enter into a recognizance for his
good behavior for one year, himself in the sum of $1,000, and
sureties in the like sum.
Hiort, for the prisoner, contended that the commitment was
illegal, both under the constitution of Virginia and that of the
United States. It does not state a cause certain, supported by
oath.
By the 10th article of the bill of rights of Virginia it is
declared that all warrants to seize any person whose offense is not
particularly described, and supported by evidence, are grievous and
oppressive, and ought not to be granted.
By the 6th article of the amendments to the constitution of the
United States, it is declared, "that on warrants shall issue but
upon probable cause, supported by oath or affirmation."
Page 7 U. S. 453
The Judges of this court were unanimously of opinion that the
warrant of commitment was illegal for want of stating some good
cause certain, supported by oath. If the circuit court had
proceeded
de novo, perhaps it might have made a
difference. But this Court is of opinion that that court has gone
only upon the proceedings before the justices. It has gone so far
as to correct two of the errors committed, but the rest remain. If
the prisoner is really a person of ill fame, and ought to find
sureties for his good behavior, the justices may proceed
de
novo, and take care that their proceedings are regular.
The prisoner is discharged.