[Ches]ter Cownty. Sepr. 19th. 1777
I am informed, that some of the Members of Congress are dissatisfied with my allowing, as Chief-Justice of this State, writs of habeas corpus for twenty persons confined in the Free-masons Lodge in Philadelphia.1
Next to the approbation of a good conscience I esteem the good opinion of good men; and of my friends in particular. This occasions you, Sir, the trouble of reading the following brief account of that transaction, and the reasons for it, which, I flatter myself, will convince you of the propriety of my conduct, and, by your candid explanation, all others, who may not have had the same opportunities with you and me of studying and understanding the laws.
The writs were applied for in form, agreeable to the directions of the statute of the 31 Car. 2 ch. 2;2
and the only authority for the confinement, that I saw, was the copy of a letter from the Vice–President to Colo: Lewis Nicola.3
My situation was such, that I had not received a letter, nor seen a news-paper from Philadelphia for a fortnight; nor could I learn any particulars respecting this affair from any one whom I met, excepting the two persons who brought the writs to me:4
they offered me a pamphlet5
written by the prisoners stating their case, which I refused to accept or read, saying, I shou'd determine upon the returns that should be made to the writs and nothing else.
The habeas corpus Act forms a part of the Code of the Pennsylvania laws, and has been always justly esteemed the palladium of liberty. Before that statute the habeas corpus was considered to be a prerogative writ, and also a writ of right
subject; and if the King and his whole
Council committed any subject, yet by the opinion of all the judges (in times when the rights of the people were not well ascertained nor sufficiently regarded) a habeas corpus ought to be allowed and obeyed
; and the distinction taken was, that in such a case upon the return
the prisoner was to be remanded, but if the commitment was by part of the Lords of the Council, he was to be bailed, if not for a legal cause he was to be discharged. I need not mention to you the many cases on this head in our books, had I any now to recur to. By the statute all discretionary power is taken away, and a penalty of £500 sterling imposed for a refusal of any judge in the vacation to allow the writ: so that if I had forgot the oath I had taken but a few days before,6
common prudence would have prevailed upon me not to have incurred the forfeiture of ten thousand pounds sterling, and also as a judge to have subjected myself to the just censure of the judicious and dispassionate; and the more especially when no injury could arise by returning the writs and bringing the parties before me, save a little delay, the expence being borne wholly by the prisoners, agreeable to the statute. If upon the return of the process I had shewn any partiality to the prisoners, or sought occasion to favor men inimical to a cause I have espoused with as much sincerity, and supported and will support with as much zeal, as any man in the Thirteen United States, then indeed I might have been deservedly blamed and stigmatized; but censure previous to this was, to say no more, premature and injudiciously bestowed. No Gentleman thought it amiss in the judge, who allowed the habeas corpus for Ethan Allen and his fellow-prisoners upon the application of Mr. Wilks &c.7
Even the Ministry despotic as they were, did not complain of it, but evaded them by sending the prisoners out of reach. Fiat justitia, ruat coelum,8
pleases me as a sentiment and faithful judges ought not be be subjected to unnecessary difficulties.
I acquainted the Vice-President with every particular of what had happened by an Express sent for the purpose; enquired of him, if the habeas corpus act had been suspended, or was about being suspended, for a limited time; and requested, if an act had passed for that purpose, to favor me with an exemplified copy. I told him, that, in almost every war since the making the statute, the like had been done in England, and that it was now in fact done there. You know however the struggles in Parliament from
time to time, whenever this has been moved by the Ministry. I could no more. On Tuesday last a law was enacted for the purpose,9
a copy of which was made out under the proper seal, and delivered to my express the same day, which has relieved me from any farther difficulties. I am anxious notwithstanding that the virtuous should think me
so, and must therefore beg leave to re-iterate my request, that you will be so kind on proper occasions to explain this matter. I know how apt many are to disapprove of proceedings that are disagreeable, without duly reflecting upon their propriety and necessity.
This seems to be the day of trial. The Die is cast. I trust “we shall throw sixes.” May the Almighty give the Congress and our Generals wisdom, fortitude and perseverance, and teach the fingers of our army to fight. Our cause is good, our army in health and high spirits, and more numerous than that of the enemy. May the divine Disposer of all events crown our virtuous endeavors with success and save our country; of this we may be confident, “for he delights in virtue, and that which he delights in must be happy.”10
I shall now subscribe myself, what with great truth and sincerity I am, Sir, Your friend and most obedient humble servant