38 Ala. 458 | Ala. | 1863
The. precise line of division which separates State and Confederate judicial authority, is not always easy of expression, if indeed it be easy of ascertainment. Operating, (within the sphere of its appointed powers,) as each government confessedly does, upon the same territorial area, and upon the same persons, it requires, in some cases, the closest scrutiny to prevent encroachment by one power upon the other. If either government, in the performance of its functions, by mistake or otherwise, transgress the boundary line which separates them, and trespass on the domain of another, such conduct does not conclude the other government, nor estop it from asserting and enforcing its own rights. On the other hand, if either government, or its officers, act within the sphere of its powers, although such action may be erroneous and reversible, it is not, except in certain specified cases, within the power of the other government to control its action thus performed, nor to correct the errors that
The distinction attempted to be drawn above may be illustrated by the two cases of Slocum v. Mayberry, (2 Wheat. 1,) and McClung v. Silliman, (6 Wheat. 599.) The case of Slocum v. Mayberry arose under the 11th section of the embargo law, approved April 25, 1808, (2 U. S. Stat. at Large, 501,) which authorized the collectors of the customs “ to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinions the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the president of the United States be had thereupon.” Under this act, the collector of the port of Newport, Rhode Island, had a' vessel, with its cargo, seized by Slocum, the surveyor of the port; and Mayberry, the owner of the cargo, brought his action of replevin for the same in the State court of Rhode Island. The cpiestion was, had the State court jurisdiction ? The supreme court of the United States, Chief-Justice Marshall delivering the opinion, decided, that if the cpiestion had arisen on the seizure of the vessel, the State court would have had no jurisdiction ; but, inasmuch as the collector had no power or authority to detain the cargo, the act of congress not making provision for its detention, the State court had jurisdiction of the case.
In the case of McClung v. Silliman, the attempt was made to control, by mandamus from a State court, the offi
So, it has been ruled, that if a marshal of the United States levy on goods under process against A, and B claim the goods as his property, in a suit by B against the marshal, State courts have jurisdiction of the question, whether the property belongs to B or to A. — Dunn v. Vail, 7 Mar. La. 416; Bruen v. Ogden, 6 Hals. 370. See, also, United States v. Peters, 5 Cranch, 115, 135; McKim v. Voorhies, 7 Cranch, 279; Diggs v. Wolcott, 4 Cranch, 179; Kitteridge v. Emerson, 15 N. H. 227 ; McNutt v. Bland, 2 Howard, U. S. 9.
Chancellor Kent’s statement of the principle under discussion is as follows : “If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject-matter, then the inquiry into the validity of the seizure belongs exclusively to the Federal courts. But, if there be no jurisdiction in the instance in which it is asserted — as if a marshal of the United States, under an execution in favor of the United States against A, should seize the person or property of B — • then the State courts have jurisdiction to protect the person and property so illegally invaded.”
Springing out of the principles settled in the cases of Slocum v. Mayberry, and McClung v. Silliman, supra, I think the following propositions may be laid down :
First: Whenever an officer, under authority in the premises conferred by the government under which he is acting, is in the performance of official duties; and, in the performance of such duties, there is expressed, or necessarily implied, the right to decide upon qualifications, or to draw inferences from facts, then any error of conclusion, or of judgment, into which he may fall, is not subject to revision or correction by the officers of the other government, nor is the officer acting subject to the coercive con
Second: Whenever the question is — not whether the officer correctly decided or acted in a matter within the scope of his power and jurisdiction — but, the inquiry is, has he erroneously applied his authority or jurisdiction to a person or subject-matter not within its scope, then the courts of the other government, if the subject and person be of a class which comes within their jurisdiction, may inquire of and determine the question of such erroneous application of authority, unless the law, in its terms, inhibit such inquiry.
There is scarcely any human action that is so entirely independent of all others, that in its performance it does not presuppose the existence of some other fact, past or present. These do not necessarily inhere in the subject-matter in hand, but are the accidents of the particular case. All actions are shaped or moulded, more or less, by their accidents, and by the decision which the actor pronounces upon them. Slocum, in seizing the vessel and cargo, construed the act of congress for himself and attained the conclusion, that it was'his duty to detain the cargo as well as the vessel. In this, he traveled beyond his authority. The act of congress clothed the collector with authority to decide, in the first instance, whether it was the intention to violate or evade any of the pfovisions of the acts laying an embargo ; and if, in his opinion, such was the intention, he was authorized to detain the vessel. He had no authority to detain the cargo. The question of detaining the cargo did not inhere in, or pertain to, the other and main question, namely, was there an intention to violate or evade the law? He erred in deciding this question of law. So, in the case of the marshal who seized the goods of B under process against A. He went beyond his authority when he seized the goods of B, and by that act became a trespasser. True, in seizing the goods of A, he must necessarily determine for himself, in
The case of McClung v. Silliman, supra, illustrates the other phase of this question. In that case, the effort was made, through the instrumentality of a State court, to compel the register of the land-office to receive proof of the legal acts, and to prepare and furnish 'the documents which should initiate the applicant’s claim to a pre-emption interest in a tract of land,. The register refused the application. It will be observed, that the register was an officer of the United States, and was specially charged with the hearing of such applications, and with receiving and acting on the evidences on which such claims were based; and that all this was done under laws and rules enacted and established by the government of the United States. These several acts were part and parcel of the functions with which the land-officer was expressly clothed, and pertained naturally and universally to the service in which he was engaged. They were not the accidents of the case, but were important functions committed to him, which were called into exercise in every application for pre-emption made in his district. The supreme court of the United States denied the jurisdiction of the State court to control the action of the register by mandamus, saying: “The question in this case is as to the power of the State courts over the officers of the general government, employed in disposing of that land, under the laws passed for that purpose. And here it is obvious, that he is to be regarded, either as an officer of that government, or as its private agent. In. the one capacity or the other, his conduct can only be controlled by the power that created him.”
The questions which arise on the face of the petition for habeas corpus, are : First, was a substitute for Mr. Armistead accepted by the proper government officer, and did he (Mr. Armistead) receive his discharge ? Second, is the legal effect of that discharge such as to exempt Mr. Armistead from conscription under the “act to amend an act entited ' an act to provide for the public defense, ’ approved April 11, 1862, ” commonly called the “ second conscript act?”—C. S. Statutes at Large, 2d session of 1st Congress, p. 61.
No question is made in this case on the fairness of the transaction by which Mr. Armistead obtained and put in his substitute ; and nothing need be said in this case on that head.
We hold, that the probate judge had jurisdiction of each of the questions above stated. The first is a question of fact, which does not involve any revision or possible reversal of any decision pronounced by the Confederate officer or officers, charged with the duty of receiving substitutes. It does not involve the inquiry, did the officer act rightly in granting the discharge ? The only question is, did he act? If the petition for habeas corpus truly state the facts, the petititioner had received his discharge from military service ; and the question of fact was, discharge vel non. The act of congress approved April 16, 1862, (§9,) provides, “that persons not liable for duty, may be received as substitutes for those who are, under such regu
The second question was one of law ; namely, does the. discharge thus obtained, and not vacated for fraud, operate an exemption from military service under the second conscript law ? The decision of this question by the probate judge does not involve a revision of any executory action of the Confedérate officer. If it be a revision of anything, it is simply of the decision of the Confederate officer, pronounced on the legal effect of certain acts, previously performed ; nothing more nor less than determining whether the officer rightly decided the legal question as to the effect of the substitution and discharge — the accident of Mr. Armistead’s case. If both of these questions be decided in favor of Mr. Armistead, he stands absolutely and unconditionally exempt from liability to conscription, under the law, as it then stood. If either of them be decided against him, he was not illegally restrained of his liberty. The decision of neither of the questions could have the effect of reversing or annulling any action of the Confederate officer, the performance of which was specially or exclusively confided to him. The writ, of prohibition must be refused.— Ex parte Hill, at the last term.
Judge R. W. Walker agrees with me in the foregoing conclusions, as to the jurisdiction of the probate judge in the case of Armistead, for reasons stated by himself. Chief-justice A. J. Walker dissents, for reasons stated by himself.-
The bill of exceptions in the case of Charles H. Dudley omits many dates, and, in other respects, leaves us in doubt as to the true state of facts on which the chancellor pronounced his decision. The present application seeks to reverse and control the action of the chancellor; and, under
The record informs us, that Mr. Dudley attempted to show, on the trial of the habeas corpus, the following state of facts; That in August, 1862, he reported himself at camp Watts, with one Peters, who was examined, accepted, and mustered into service as Dudley’s substitute, and he (Dudley) thereupon received his discharge; that some time afterwards, (date not given,) Major Swanson, commandant of conscripts at that camp, had him (Dudley! ordered back to camp, and detained him there ; that the pretense on which he was ordered back, was some alleged fraud or duress practiced in procuring and putting in his substitute, Peters ; that he applied to the secretary of war for leave to examine witnesses, and to cross-examine those against him; that this application was received by the secretary of war in December, 1862 ; that thereupon the sentence was suspended, and time allowed to rebut the evidence against him ; that petitioner sought to have an order made, requiring mutual notices of the time and place of taking testimony, but failed .to obtain such order; that on the last day allowed to petitioner to produce proofs, &o., ex-parte affidavits were again produced against him, heard as evidence, and the former decision sustained; that he again applied to the secretary of war to open and extend the time for the examination of witnesses, but his application was refused, — the secretary of war ruling that the substitution was set aside for fraud.
No dates are specified when any of these transactions took place, except three : first, the order of the secretary of war, made December i, 1862,'instructing the commandant to discharge Peters and detain Dudley; second, the time alleged, December, 1862, when the secretary of war received Dudley’s first application to extend the time for testimony; and, third, that the extended time expired
When the trial had so .far progressed, as to bring to the notice of the chancellor the fact that the substitution had been set aside for fraud, and the order of the secretary of war had been issued thereon, refusing further extension of time, and approving the detention of Mr. Dudley as a conscript, the chancellor refused to proceed with the examination, declining to re-try the question of fraud in the matter of putting in Peters as a substitute for Dudley. We are asked to control the action of the chancellor by mandamus, or such other writ as may be necessary for the purpose.
We are not able to affirm positively whether or not the first order, vacating the substitution for fraud, was made before or after November 3d, 1862 ; but we must presume it was made after that time, as that presumption is most favorable to the correct ruling of the chancellor. The dates given incline us to believe such was the fact.
In general order No.- 82, for the year 1862, under date of November 3d, are found orders relating to substitution, from which I make the following extract: “When a person claims exemption, on the ground that he has put a substitute in service, he must exhibit to the enrolling officer a discharge from some company, signed by the commanding officer of the regiment or command to which the said company belongs, or then belonged, (see general order No 26,) or an exemption signed by the commandant of conscripts. And if the said discharge or exemption do not show that it was granted in consideration of a substitute having been furnished, such fact must be certified in writing by the commanding officer of the regiment or command to which the company belongs, or by the commandant of conscripts, as the case may be. But, in all cases arising within thirty days from the date of this order, the enrolling officer may grant the exemption, upon satisfactory proof that the party furnished a substitute, who was actually received into the service of the Confederate States for three years or the
I have given this lengthy extract, not because each clause, per se, bears on the question before us, but to show by the context what are the meaning and purpose of the last clause quoted. What, then, is the meaning of the language, “such exemption may at any time be cancelled, if fraud or mistake be discovered ?” Obviously, not that the agreement between the principal and the substitute should, as a binding obligation between themselves, be liable to be cancelled for fraud, under proceedings had in the courts of the country. That right, so far as they were individually concerned, existed independently of the order. Nor, indeed, had the secretary of war the power of conferring such right upon mere private parties, nor of clothing State courts with such authority. — 2 Story on Cons. §§ 1755-6, and note 2. Such an order, having that object, could not be regarded as a regulation of the privilege of putting substitutes in the army. Moreover, it can not be supposed that the Confederate government, even if it had the power, would deem it necessary to furnish the parties with a safeguard against imposition among themselves, cumulative and special, beyond that which all citizens enjoy under the general law. Fraud upon the public service was evidently had in contemplation. This is shown by the language of the order, and by the context, and is fully confirmed, if confirmation be necessary, by the great notoriety which the numerous frauds of that kind had acquired in the country.
This being the case, it is manifest that the inquiry of fraud vel von, lor which the order makes provision, was not. intended to take place in the ordinary course of proceedings in the courts of the country. The intention was, that the commanding officer, or commandant of conscripts, should inquire of and determine the question of fraud in the matter of the substitution. Thepurpose ofthe orderwas, to protect the public service against frauds on the privilege
If the commandant of conscripts, or the secretary of war, in violation of the plain rules of law, cancelled the substitution in this case, on evidence furnished by ex-parte affidavits, or refused to require notice of the time and place of taking the testimony, or did not afford to Mr. Dudley'an
The chancellor did not err in refusing to re-try the question of fraud; and the motion of petitioner must be denied.
The chief-justice concurs in this conclusion. His own opinion contains his reasons. The opinion of Judge R. W. Walker shows how he stands.
Mr. Armistead’s application for enlargement rests, as his petition informs us, on the fact that, in August, 1862, he put in a substitute, who was over thirty-five years of age, and who was accepted, and he (Armistead) discharged. The petition does not aver, that the substitute was over forty years old when the writ of habeas corpus was applied for. The application was made January 27, 1863, — after the passage of the amendment to the conscript law of September 27, 1862, and after the call of the president for all up to the age of forty who were not legally exempt. We suppose, from the silence of the petition, that the substitute was in fact under forty years of age ; and that the real controversy between Mr. Armistead and the enrolling officer, grows out of a difference of opinion between them, as to the effect of the president’s call for conscripts up to the age of forty, on those persons who had previously obtained their discharge by putting iu substitutes who were, at the time of the second call, liable to do military service on their own account, being within the then conscript age. Supposing this to be the main question in the cause, and entertaining, as we do, a deliberately formed opinion upon it, with which we are satisfied, we will proceed to announce it for the guidance of the present trial, and for others similarly circumstanced.
What, then, is the effect upon the principal of the en
Three decisions have been brought to our notice, pronounced on applications similar to that of Mr. Armistead: One in the matter of Cohn, made by Judge McGrath, of the district court of South Carolina; a second, - in the matter of Underwood and Allen, made by Judge Jones, of the district court of Alabama; the third, in the matter of Irvin, made by C. J. Pearson, of the North Carolina supreme court, Each of the opinions delivered in these causes ignores general order No. 37, of May 19;- and
The line of argument employed in these several opinions is not precisely the same ; but in the points actually decided, there is a substantial conformity. The following propositions, it is believed, express the principles on which each of them rests, with sufficient accuracy to do the authors of them no great injustice: First, That the petitioners, by putting in substitutes, had obtained discharges under the act of April; Second, That the act of September placed in the army only those persons who are between the ages of thirty-five and forty-five, and, consequently, did not put into the army the petitioners, who were under thirty-five: Third, That the act of September was passed to call into service persons within the specified age, who were out of the service — not those who were in, as the substitutes were; and that congress cannot be supposed to have intended that the substitutes should be mustered out of the service, that they might be again mustered in as conscripts, in order thereby to reach the principals who put in those substitutes.
To each and all of 'these propositions, as expressed, we unhesitatingly assent. The conclusion drawn from them is not so clear. But, what is meant by the idea expressed in these opinions, that the substitute is not to be mustered out of the service, that he may be again mustered in as a con
The true construction of the statute and general order is, that persons under thirty-five years of age, who put in substitutes between the ages of thirty-five and forty, are, in consequence thereof, exempt from military service, only until the substitute, by a change of the conscript age, or other circumstance, is embraced within the terms of the call. The principal then becomes again liable to serve in his own place; not under the act of September, but under the act of April, from which service he had enjoyed a temporary and defeasible exemption.
What we have said above is in reply to a supposed argument, based on general order No. 64. That order was issued on the 8th September, a month or more after Mr. Armistead claims to have put in his substitute. We need
The supreme court of the State of Georgia, on the application of Farrell and, Williams, has recently had this subject under discussion, and has placed the same construction which we do on the order of May 19, 1862.
We need not, and do not, decide whether general order No. 87 retroacts on cases of substitution which were consummated before it was issued. No case of that kind has come before us, and we reserve our opinion until the question is properly presented.
It may not be improper to add, that this part of the opinion is concurred in by the entire court.
In Ex parte Hill, at the last term, I delivered an opinion, denying the jurisdiction of a State judge to discharge, on habeas corpus, one who had been enrolled as a conscript, upon the ground of his exemption from conscription. Neither subsequent reading and reflection, nor the opposing arguments of other judges, have changed my convictions. The question again arises in these cases; and I embrace the opportunity which is thus afforded, to fortify and extend my former argument. In doing so, I shall avoid, as far as possible, a repetition of what I have heretofore said. I therefore refer to my opinion in Ex parte Hill, in re Willis et ah, which must be read in connection with this, in order that the entire argup ment may be understood.
While the State courts have a concurrence of jurisdiction with the courts of the general government, where there is no legislative exclusion, over most subjects cognizable in the latter tribunals, this concurrence is not universal. The Ene of division between the concurrent and exclusive jurisdiction of the courts of the general government is not distinctly and clearly defined. I refer to discussions upon that subject, without comment, as my argument does not
The concurrence of jurisdiction in the State courts, over subjects falling within the judicial power of the Confederate States, is subject to exception. The judicial power of our general government extends to all cases arising under its constitution and laws. I maintain, that so much of that jurisdiction as is exercised in the application of judicial correctives to the irregularities and errors of the executive officers of that government, charged with the enforcement of the conscript law, is necessarily exclusive; and that such officers, when acting within the limits of their authority, can not be interfered with by a State court, although they may commit errors. As the government, in the execution of the conscript law, reaches and affects the persons of its citizens; and as any irregularity or error of the officers must wrongfully infringe the liberty of the citizen, the corrective must be obtained through a writ of liabeas corpus, operating upon the erring officer. The proposition which I maintain, leads, therefore, directly to
The constitution bestows upon the government, not only the power of making laws, but the power of executing them. It prescribes that the president “ shall take care that the laws be faithfully executed.” Under the old articles of confederation, which preceded the constitution of the United States, the important powers of the government were executed through the agency of the States* The clause of the constitution above stated remedies that, defect in the old system, and gives to the government authority to act directly upon individuals in the execution of its powers. — Federalist, XY. pp. 65 to 71; Calhoun on the Government and Constitution of the United States, 168. The constitutional authority to execute the law, is as ample and complete as the authority to pass it. The execution of the law must be accomplished, generally, through subordinate officers. Congress may prescribe the duties of such subordinate officers, but the constitution bestows authority to perform those duties. The constitution imposes no qualification or restriction upon this authority to' execute the law. The political doctrines of secession and nullification suggest remedies for the usurpation of power, by the action of bodiesn'epresenting the sovereignty of the States. The line of my argument does not touch either of those doctrines. When the government, in the exercise of its constitutional power to execute the law, through its officer, errs in the performance of its duty, and wrongfully touches the liberty or property of the citizen, the remedy by which the error may be corrected and the wrong prevented is judicial. To concede the power of a State court to apply that remedy, and thus to interfere with, and control and govern as to the manner of executing the law, is to confess that the power of execution is qualified and restricted
I do not say that congress can abridge or qualify the jurisdiction of the State courts. The want of authority in the State tribunals, to supervise and control the executive officers of the Confederate States, in the exercise of their appointed functions, by the writs of injunction, replevin, habeas corpus, or other process, results from the delegation in the constitution of an unqualified power to execute the laws which congress may enact, and not from any denial of such authority by act of congress. If a State court can not correct, under a writ' of habeas corpus, the errors of the enrolling officers engaged in enforcing the law of conscription, it is because the constitution bestows the power to execute the law without -any qualification that it shall be done in a manner consistent with the judgment of a State judge, and not because congress has suspended, or can suspend, the writ of habeas corpus.
The constitutional power of executing the laws of congress, whether they touch the person or the property of the citizen, can not be subordinated to the authority of a State tribunal, by its supervision and control of the conduct of the executive officers acting within the area of their jurisdiction. This is an inevitable deduction from the proposition, that the generahgovernment is, within the sphere of its delegated powers, co-ordinate with the
“The government of the States sustained to the former ;[the confederacy which preceded the constitution of the United States] the relation of superior to subordinate, — of the creator to the creature ; while they now sustain to the latter [the government of the United States] the relation of equals, or co-ordinates. Both governments — that of the United States, and those of the separate States — derive their powers from the same source, and were ordained and established by the same authority; the only difference being, that in ordaining and establishing the otíe, the people of the several States acted with concert, ©r mutual understanding; while in ordaining and establishing the others, the people of each State acted separately, and without concert or mutual understanding, as has been fully explained. Deriving their respective powers from the same source, and being ordained and established by the same authority, the two governments, State and Federal, must, of necessity, be equal in thew respective spheres; and both being ordained and established by the people of the States respectively, each for itself, and by its own separate authority, the constitution and government of the United States must, of necessity, be the constitution and government of each, as
“It is obvious from this sketch, brief as it is, taken in connection with what has been previously established, that the two governments, general and State, stand to each other, in the first place, in the relation of parts to the whole; not, indeed, in reference to their organization or functions, for in this respect they are perfect; but in reference to their powers. As they divide between them the delegated powers appertaining to the government, and as of course each is divested of what the other possesses, it naturally requires the two united to constitute one entire government. That they are both paramount and supreme withm the sphere of their respective potoers, that they stand within those limits as equals, and sustain the relation of co-ordinate governments, has been fully established. As co-ordinates, they sustain to each other the relation which subsists between the different departments of government — the executive, the legislative, and the judicial, and for the same reason. These are co-ordinates, because each, in the sphere of its powers, is equal to, and independent of the others, and because the three united make the government. The only difference is, that, in the illustration, each department by itself is not a government, since it takes the whole in connection to form one ; while the government of the several States respectively, and that of the United States, although perfect governments in themselves, and in their respective spheres, require to be united, in order to constitute one entire government. They, in this respect, stand as principal and supplemental, while the departments of each stand in the relation of parts to the whole.” — Pages 197-198.
“That they are both governments, and as such possess all the powers appertaining to government, within the sphere of their respective powers — the one as fully as the other — can not be denied.” — Page 241. See, also, pages 225, 242, 243, 252, 253.
Under our compound system of government, the general government and the States are the peers of each other; and the authority of each, within the scope of its powers, is paramount over the other. To each there is a like negation of right to control the other in the exercise of its authority. The State can no more'control the general government in the exercise of its powers through its appointed agents, than can the general government control the States in the exercise of their respective powers. The courts of the general government are limited in their jurisdiction. Aside from this consideration, and as a mere question of governmental power, the State tribunals can no more release from the custody of the executive officers of the .general government one taken as a soldier, because, in the judgment of such tribunal, such person was not within the operation of the act of congress, than could a tribunal of the general government take from the custody of a State officer one taken as a State soldier, because, in its judgment, such person was not within the operation of the act of the State legislature. This must be so ; otherwise, the two governments are not co-ordinate or equal.
Chief-justice Taney, speaking the unanimous opinion of the judges of the supreme court of the United States, but carried the propositions of Mr. Calhoun to their obvious and necessary result, when, in the case of Ableman v. Booth, (21 How. 516,) he penned the following sentence : “The powers of the general government and of the States, al
The principle for which I contend, is not only sustained by reasoning drawn from the relation of the governments, State and Confederate, to each other, but is established by judicial precedents, which every lawyer is bound to respect, if not to obey. The embargo act of 1808 authorized collectors of customs to detain vessels, whenever in their opinion there was an intention to violate the provisions of the act; but it was silent as to the cargo. A vessel and its cargo having been detained, Chief-j ustice Marshall held, that an action could be maintained in a State court for the recovery of the cargo, because the act of congress gave no right of seizure or detention as to it; but that an action for a vessel tortiously seized could only be brought in the Federal courts and that the officer having a right to seize for a supposed forfeiture, the question, whether that forfeiture had been actually incurred, belonged exclusively to the Federal courts, and could not be drawn to another forum. — Slocum v. Mayberry, 2 Wheaton, 9. The opinion says:. “Had this action been brought for the vessel, instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of congress, and the jurisdiction of a State court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the State court.”
If there were no law authorizing conscription, and yet a
By the supreme court of the United States, it has been held, that a mandamus, to compel the register of a land-office to perform an official duty as to an entry of the public land, could not be issued by that court, because it could not exercise original jurisdiction over such a subject. It was held, also, that the writ for such purpose could not be issued by the circuit court of the United States, notwithstanding the judicial power of the United States under the constitution extended to such a case. This latter decision is put upon the reason that, congress had not, by the judiciary act, delegated the judicial power of the government to control the register of the land-office by mandamus. Although it thus resulted, that no judicial tribunal of the United States, under the existing legislation, could give to
The principle which I assert is most clearly sustained and forcibly illustrated by the cases growing out of the fugitive-slave law. The act oí 1850 authorized the reclamation of fugitive slaves by the procurement of a warrant from a commissioner, or by seizing and taking the fugitive before a comissioner, whose duty it was to grant a certificate, authorizing his removal to the State from which he escaped. — Brightley’s Digest, 296, § 8. The proceeding-before the commissioner, under that law, was summary, and ex-parte, and might be based upon affidavit made in the State from which the fugitive escaped. The courts of the United States held, that a State court had no power to interfere with the owner or marshal engaged in executing that law; and the South applauded the decisions, as asserting the only principle by which an execution of the law could be had in a community made, by fanatical opposition to slavery, unmindful of constitutional duty. The principle asserted in those cases, arising from the fugitive-slave act, is identical with that which I am endeavoring to maintain. It is a well established doctrine, that where two courts have concurrent jurisdiction, the exercise of the jurisdiction by one of the courts ousts the authority of the
Chief-Justice Pearson, of North Carolina, in the matter of Bryan, before the supreme court of that State, argued againsjt the proposition, that the officer executing the conscript law exercised gmsi-judicial power, upon the ground that the vesting of such authority in an officer would break down the distinction, which the constitution carefully draws, between the executive and judicial departments of the government. In this argument, it seems to me, the learned chief-justice overlooks the difference between judicial authority, and that which is quasi-judicial, or merely judicial in its nature. The bestowment of any part of the judicial authority of the United States, upon an officer appointed and qualified as were the commissioners who were empowered to issue warrants for the seizure of fugitive slaves, and to authorize their return to the States from which they escaped, would have infringed the provision of the constitution which prescribes the mode, of appointing judicial officers, and their tenure; and the proceedings before such commissioners would probably have been violative of the constitutional provision on the subject of jury trials. The constitutionality of the fugitive-slave íaw can
I make the following extract from the above mentioned charge of Judge Nelson : “ It has been made a question upon this act [the fugitive-slave law], whether or hot it was competent for congress to confer the power upon the United States commissioners to carry it into execution. As the judicial power of the Union is, by the constitution, vested in the supreme court, and in such inferior courts as congress may from time to time establish, the judges of which shall hold their offices during good behaviour, it has been supposed that the power to execute the law must be conferred upon these courts, or upon judges possessing this tenure. It is a sufficient answer to this suggestion, that the same power was conferred upon the State magistrates by the act of 1793 ; and which, in Prigg v. Commonwealth of Pennsylvania, was held to be constitutional, by the only tribunal competent under the constitution to decide that question. * * *. The judicial power mentioned in the constitution, and vested in the courts,- means the power conferred upon courts ordained and established by and under the constitution, in the strict and appropriate sense of that term — courts that compose one of the three great departments of the government, prescribed by the fundamental law, the same as the other two, the legislative and the executive. But, besides this mass of judicial power belonging to the established courts of a government,
Language equally pointed and clear will be found by reference to the other authorities above referred to. Our own court, in Gaines v. Harvin, (supra,) used the following language : “ We not understand by this provision in the constitution, that it was the intention of its framers to deny to the legislature the power to confide to ministerial officers, who do not constitute a part of the judiciary properly so called, many duties involving inquiries in their nature judicial. The practice of this, as of all other governments having their executive, judicial, and legislative departments separate and distinct, very clearly shows that, in the administration of the laws, inquiries partaking of the nature of judicial investigations are confided to persons other than judges, whose acts have never been questioned
If it were true, as argued by Chief-Justice Pearson, that to confer on the secretary of war and his subordinates the power of determining who is liable to conscription, would be “ totally at variance with every principle of our government,” then the fugitive-slave law, in its bestowmeht of power upon the commissioners, violated the constitution; and the law investing the registers of the land-offices, and every department of the government, with gwsi-judicial power, is unconstitutional. The authorities which I have cited, as well as those from which I have made extracts, fully illustrate and sustain the distinction which I have drawn, and I need not further discuss the point. I think it can not be controverted, by any one who respects judicial precedents and fair argument, that the commissioner who issued a warrant for the arrest of a fugitive slave, was no judge, held no court, did not exercise judicial authority, issued no process returnable to a court, and really put forth no judicial process; notwithstanding, in the careless use of language, his process may have been so characterized. The commissioner was as much a ministerial, or executive officer, as the officer charged with the execution of the conscript law ; and their powers are alike gwsi-judicial, ,as distinguished from judicial, in their character. Upon what ground, then, can it be maintained, that the State courts can interfere with the execution of the conscript law, and yet were without power to interfere with the enforcement of the fugitive-slave act ?
I proceed to notice some of the decisions and rulings
Judge McLean, one of the judges of the supreme court -of the United States, in reference to a case where a Kentuckian, the owner of slaves, seized then in Michigan without a warrant, held, that the owner having a warrant issued by a commissioner, or having seized his slaves in the absence of a warrant without a breach of the peace, upon the return of either of those facts, the authority of the State court under a writ of habeas corpus would cease, because it would then appear that the prisoner was held under the authority of the constitution and laws of the United States. Norris v. Newton, 5 McLean, 82.
A case is reported in 5th Am. Law Reg. 659, September, 1857, (Ex parte Sifford Marshall, et al.,) which was decided in an able opinion by Judge Leavitt in the district court of Ohio. In that case, some persons had resisted the marshal in the arrest of a fugitive slave. Those persons were arrested under a warrant upon the charge of resisting the officer. An attempt was made to take the prisoners out of the custody of the marshal by virtue of a writ of habeas corpusissued by a State judge. For an assault and battery committed in resisting this attempt, the marshal and his posse were arrested under a warrant issuedby a justice of the peace. A habeas corpus was obtained from the district judge ; and he, in passing upon the power of a State court to interfere, with the custody of prisoners held by the marshal under a warrant, used the following language: “ The doctrine seems now to be settled, that a State judge has no jurisdic
In the celebrated Sims case, (7 Cush. 285,) the supreme court of Massachusetts declined to issue a writ of habeas corpus for a fugitive slave, claimed in the petition to be free, who had been arrested under a warrant issued by a commissioner. The court, in an opinion delivered by Chief-Justice Shaw, while admitting the general proposition, that a State court “can not issue a writ of habeas corpus to bring in a party held under color of process from the courts of the. United States, or whose services and the custody of whose person are claimed under authority derived from the laws of the United States,” denies the universality of the proposition, and instances the cases of soldiers and sailors held by military and naval|officers under enlistments complained of as illegal and void, as exceptions. The distinction intimated can only be maintained upon the supposition, that the principle involved would yield at the judicial will to suit the wants of the case.
Finally, the subject was presented to the supreme court of the United States, in the two cases of Ableman v. Booth, and The United States v. Booth, in which Chief-Justice Taney delivered the opinion of the court, which is reported
It has been objected to the authority of this opinion, first, that the court and the great jurist who delivered it did not really mean what is said; and secondly, that it must at all events be treated as an obiter dictum — as the opinion ef an able lawyer on a question not presented by the facts before'the court. In reply to the former objection, I have only to say, that when the case of Ablentan v. Booth was decided, the supreme court of the United States, with its nine judges, in the high qualities of lofty integrity and profound learning, had no superior, if it had an equal; and it is inconceivable that the language of so important an opinion should have obtained the unanimous sanction of such a tribunal, unless it afforded a true index to its opinions. The second objection is as groundless as the first. The decision of the case in which there had been a conviction and a sentence, might have been put upon the principle, that the judgments of judicial tribunals, within the area of their jurisdiction, are conclusive. In the other case, where there was simply an arrest and commitment by authority of a commissioner, that proposition would not have decided the case; for the authorities hereinbefore cited show, that it is now the established doctrine, however much it may have been controverted in the past, that the commitment of one to answer before a court for an offense does not involve the exercise of judicial power. Although an offender may have been committed by a commissioner, to answer a charge, the truth of
But it may be said, that the court should have restricted its doctrine to the very facts of the case, and, instead of announcing the broad and comprehensive principle, that the jurisdiction of the general and State governments are as distinct as if separated by visible marks — that neither can cross the line which divides their jurisdictions, and that, therefore, a State tribunal can not interfere with the custody of one held under the authority of the United States — should have emasculated the principle, by adding the proviso, that its application should be confined to cases of imprisonment under the warrant of a commissioner, or under a conviction in a Federal court. It is not right to denounce the statement of a principle as an obiter dictum, because it is large enough to cover other cases than those decided. To do so, would banish from the bench the assertion of those comprehensive and leading doctrines which give stability and harmony to jurisprudence, and require the judicial mind always to present principle narrowed down by the facts of the particular case, and therefore unfitted to be a rule of conduct in the affairs of life. The great doctrine stated by the supreme court of the United States was applicable to the cases decided, and controlled their decision. It is, therefore, not an obiter dictum.
As the result of my long review of the decisions grow ing, directly and indirectly, out of the fugitive-slave law, I confidently assume, that the principle which I have asserted is fully supported by them, and that it has the sanction of the supreme court of the United States, which,
In the Federal courts, the jurisdiction of the State courts was never acknowledged. In Veremaitr’s case it was expressly denied. — Hurd on Habeas Corpus, 197. In the case of Keeler, (Hempstead’s R. 306,) it was doubted, if not denied. No American law-writer has conceded the jurisdiction, except Mr. Hurd, whose book was written in Ohio, in 1858, during the struggle of the State courts, in the non-slaveholding States, to defeat the enforcement of the fugitive-slave act; and who exhibits his own proclivities, by the expression of doubts as to the constitutionality of that act — pp. 648, 649. Chancellor Kent as a judge in New York denied the State jurisdiction, and afterwards in his commentary only yielded the point to a later decision
Ingenuity may suggest the reply to my argument, that the conscript law bestows no authority to enroll those who are exempt for any of the reasons specified in the law; and that, therefore, the officer who visits conscription on one not liable, does not act under the authority of the government of the Confederate States. To this reply I rejoin, that there is a necessarily implied authority in the officer to determine who are amenable to conscription ; for how can he enroll those liable, and exempt those not liable, without determining who belong to the respective classes? The officer, in ascertaining who are within the age of conscription, as clearly exercises an authority bestowed by act of congress, as he does in enrolling a man of undisputed liability. A youth is presented to an enrolling officer; his age is doubtful; the law commands the officer to enroll him, if he is eighteen years of age; the officer does not know whether he is of that age; must he, because be is thus uninformed, discharge the young man ? He must do so, unless he has authority under the law to investigate the question of age; for, as an officer, he can do nothing for which the law does not afford a warrant. The authority to determine the question of liability to conscription is necessarily involved in the power to conscribe; for there can be no conscription without the ascertainment of its proper subjects. An officer must have the power necessary to discharge his duty. Certainly the officer may err; so may all the officers of the general government— the collector of customs, the post-master-general, the bommissioner who commits persons held to have violated the criminal law, and all others who exercise powers which concern the pecuniary interest, the property, or the liberty of the citizen ; yet it will scarcely be contended, that it is the province of a State tribunal to visit a controlling authority over those officers, in order to coerce the corree
If the officer charged with the execution of the conscript law has no authority to decide the question of liability to conscription, it is competent for any State officer, authorized to issue a writ of habeas corpus, to treat every enrollment as a nullity, and to discharge every man enrolled, when in his judgment there was not a liability. The officer becomes liable to a conviction for false imprisonment, if a State court differs from him upon the question which he is bound to decide. He may have decided and acted precisely as he thought to be right, and as the judicial tribunals of the government, whose officer he was, would approve; and yet he may be punished as a criminal, because some judicial officer of another government entertained a different opinion. An army raised in a particular State, and deemed liable to conscription by the executive and judicial departments of the Confederate government, and of the State where it was raised, may, upon reaching some other part of the Confederacy, find some officer, clothed by the State law with power to issue the writ of habeas corpus, whose peculiar views will lead him to disband the army in a day. The tribunals of a single State, differing from those of the Confederate States and of every other State, may utterly subvert the application of the power to raise armies to that State. They may even invite the people from other States, by peculiar rulings, to fly to their jurisdiction as a sheltei-from the enforcement of the law. It is to be apprehended that our government will not be permitted to pass through its infancy, without experiencing some or all of the ruinous consequences which are (as I believe) probable results of the proposition, that State courts have the jurisdiction claimed for them.
Congress has power, granted by the constitution, to suspend the privilege of the writ of habeas corpus, when, in
As the writ of habeas corpus was never suspended by the government of the United States before the secession of the southern States, we can find in its annals no decision upon the exact question in hand. Nevertheless, I think Chief-Justice Marshall and Chancellor Kent have announced a principle irreconcilable with the supposition that congress can suspend the issue of the writ by State judges.
While the provision of the constitutionhn plies an authority to suspend the privilege of the writ of habeas corpus, it restricts that authority to occasions when, in cases of rebellion and invasion, the public safety may require it ; and it likewise restricts judicial authority by a prohibition to relieve under the writ, when there is a constitutional suspension. I cannot perceive how this limitation of .judicial authority can, consistently with the principle stated by Chief-Justice Marshall and Chancellor Kent, be made to apply to the judicial department of the State government. A theory, which necessitates the imposition of such a restriction upon the authority and power of State judges, can not, it seems to me, be correct.
If it be understood that the State judges cannot discharge persons held under the authority of the Confederate States, perfect harmony in the operation of the two systems is preserved. Neither the States collide with the general government, when it, in the exercise of its powers, takes a person into custody ; nor the latter with the States when exercising their proper judicial functions. And the States will be left, as it was intended they should, in the undisturbed exercise of powers, extending “ to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Federalist, No. XLV, 216.
The privilege of interfering with the general government, in the execution of its laws, is no compensation to the impaired and wounded sovereignty of the States, for the concession to another power of the authority to suspend the right of their citizens to obtain the writ of habeas corpus from their judges.
This question, so far as I have discovered, was noticed in only one of the State conventions, which ratified the con
I concede, and never intended to be understood as controverting, the authority of the State courts to inquire into the cause of imprisonment of the citizens of the State. On the contrary, I hold, as do all the authorities, that a State judge ought to take jurisdiction, until he ascertains that the petitioner is held under the authority of the Confederate Slates; and that as soon as he is so informed, whether by the petition itself, or the subsequent proceedings, he ought to repudiate the cause. — Ableman v. Booth, supra; also, Sims’ case, 7 Cush. 2S5; Watkins’ case, 3 Peters, 204 ; Ex parte Passmore Wlliamson, Amer. Law Register for November and December, 1855, vol. 4, p. 31.
I fully concur with my brother Stone in the conclusion attained by him in the Dudley case. I concur with him, also, in his construction of the law and regulations on the subject of substitution. As far as the question of jurisdiction is concerned, I rest my conclusion upon my own argument, and do not assent to the reasoning which concedes jurisdiction to the State courts in some cases, and denies it in others.
This opinion has been swelled to a great length by the numerous and extended quotations made in it. My apology for this is, that I have felt solicitous to vindicate my position with the bar of the State ; and I thought it would be better to make the literal extracts found in this opinion, because many belonging to the profession may not have the time or opportunity to examine the works from which the quotations are made. At the time when I wrote my first opiinion, there had been only one or two adjudications upon the subject in the Confederate States. The question has been now, expressly and by implication, passed upon
This case presents the question of the power of the State courts to discharge, on habeas corpus, persons illegally held in custody by the enrolling officers of theConfede'rate States, under the asserted authority of the acts of congress popularly known as the “conscript laws.” I am strongly inclined to the opinion, that the jurisdiction of the State courts to issue the writ of habeas corpus, to bring in persons held as conscripts under the alleged authority of these laws, and to try the lawfulness of their detention, is concurrent and co-extemive with the jurisdiction of the Confederate courts in the premises. At all events, I am thoroughly satisfied, that whenever a person in the custody of an enrolling officer in this State shows that he belongs to any one of the classes of persons expressly “ exempted ” from military service by the laws of congress ; or that, having furnished a substitute, he has obtained a discharge, which is still valid and operative ; or that he is not of conscript ageor that, because of non-residence, color, or other legitimate reason, the law of conscription does not apply to him, it is not only the right, but the sacred duty of the judges of the State courts, to discharge him on habeas corpus.
The only question necessarily presented, and, as I understand it, the only question actually decided in Ex parte
The application for the prohibition is placed upon the ground, that the probate judge, in issuing the writ of habeas corpus, and taking cogizance of the matters therein mentioned, has “acted without authority of law, and usurped jurisdiction of matters which are only cognizable before the judicial or military tribunals of the Confederate States.” I think it should be overruled, even if it should appear that the state of facts set forth in the petition for habeas corpus does not with complete certainty exclude the idea that the petitioner may be now liable to enrollment. The writ of prohibition ought not to be granted in such a case, unless it is plainly shown that the judge was proceeding to try a question, or exercise an authority, out of his jurisdiction.
As the subject is one of the gravest import, and as the state of my health disables me at present from stating at large the grounds of my opinion as to the existence and extent of the jurisdiction of the State courts, on habeas corpus, in cases arising under the conscription laws, I wish to
Note by the Reporter. — The foregoing opinion of R. W. Walker, J., applies only to ArmisteacVs case, and seems to exclude the expression of an opinion in Dudley's case. But Judge W. afterwards instructed the reporter, in publishing the cases, to state that he dissented from the decision of the court in the latter case, unless, in the meantime, he himself prepared and filed another opinion, expressing more fully his views.
