20 F. Cas. 592 | N.D.N.Y. | 1867
On Saturday, the ICth of March last, a writ of habeas corpus was allowed in this case, returnable at the stated session of this court held at Utica on Tuesday, the 19th of that month. At that term a return was made by Capt. G. W. Walker, United States army, setting forth, in substance (among other things), that the petitioner was a regularly enlisted soldier in the army of the United States, and was held to service therein by virtue of such enlistment, and that while so held he deserted the service of the United States, “thus committing an offense agsfinst the laws of the United States, which crime, under said laws, is cognizable exclusively by a court of the United States of competent jurisdiction, denominated a ‘general court-martial.’ ” The return also set forth the arrest of the petitioner, as an alleged deserter, in consequence of the evidence contained in an affidavit made by one James Riley (a copy of which was annexed to the return) and in a descriptive list furnished by the military authorities. The most material statements of such affidavit and descriptive list will be hereafter more particularly set forth. The return also set forth the making of a military order for the petitioner’s transportation to h'ort Columbus, in New York Harbor; that afterwards, and just before he was placed on the cars, under that order, a writ of habeas corpus was allowed by the Hon. Geo. E. Lamont, county judge of Niagara Co., and was served upon the respondent; and that, after a full and fair hearing before said judge, the petitioner was remanded to the custody of the military authorities. The return, as originally drawn, concluded as follows: “This respondent further claims that this matter should be adjudged res adjudicata, and the habeas corpus dismissed, as no new matter has arisen subsequently to the prior adjudication which can in any way affect this question; and that no new state of facts between the parties has arisen subsequently to the prior adjudication.” By an addition to this return, the proceedings before Judge Lamont were presented and referred to as a part of the return, and “as containing all the matter set forth and the evidence adduced by the petitioner and respondent.” The return was immediately traversed, and petitioner alleged (among other things) that he was not a regularly enlisted soldier in the army of the United States, and that he was not held or bound to serve therein by virtue of any such enlistment, and that he had not deserted from the army; that on the hearing before Judge Lamont the counsel for said Walker, or for the United States, objected to the hearing of the case, or to the said judge inquiring into the cause of the arrest, on the grounds that he had no jurisdiction to do so, for the reason that said Walker had returned that he held the petitioner under the laws of the United States. The petitioner, by his traverse, also insisted that Judge Lamont had no jurisdiction of the ease heard before him; both parties thus taking, in this court, in respect to that question, positions directly opposed to those they occupied before Judge Lamont. Both the return and traverse contained many other allegations not necessary to be considered in the decision of the case as finally presented.
After a brief argument it was announced by the court that its opinion then was that Judge Lamont had jurisdiction of the proceedings before him upon habeas corpus, and that (conceding his jurisdiction) such proceedings, and his decision thereon, were no bar to proceedings by habeas corpus in this court. It was, however, intimated that these questions would be reserved for further consideration, and that they might be again discussed by the counsel when the case was argued upon the merits. The petitioner, being present with his witnesses, and in custody, pressed for an immediate trial; but the counsel for the government stating that, in case the proceedings before Judge Lamont were not held to bar the petitioner’s right to proceed in this court, he desired time to procure witnesses to show that the petitioner was an enlisted soldier, and to establish his identity as the person who enlisted under the name of William Sloan, and also stating that some of such witnesses were at Little Rock, in Arkansas, where the company to which the petitioner belonged was then stationed, it was determined to postpone the hearing of the case until the present term. And it was announced that the questions of res adjudicata and of the jurisdiction of Judge Lamont would be examined by the judge of this court in vacation. The question in regard to the effect of the prior adjudication was supposed to involve the examination of the question of jurisdiction, for it was not contemplared that it would be contended that the decision of a tribunal which would have no jurisdiction of the questions in controversy could be interposed as an effectual bar to an inquiry into the merits of
The question of jurisdiction was considered open to discussion for several years after the adoption of the federal constitution, very lew cases having arisen in which it became necessary to decide it; but for nearly thirty-five years, prior to 1859, it had, I think, been considered definitely settled in favor of the jurisdiction of state courts and judges. The question will therefore be considered as one depending upon the authority of decided cases, more than upon any argument now' to be advanced; and I shall not attempt to repeat the arguments by which the doctrines of decided cases have been sustained.
The position taken by the learned counsel for the government in his brief, furnished just before the commencement of this term, is stated in his fourth point, in this language: “Judges of the state courts have no power to issue a writ of habeas corpus, or to continue proceedings under it when issued, in cases of commitment or detainer under the authority of the United States."’ Under this point he cites twenty-eight different cases or authorities, w'hieh I shall presently consider, but. before doing so, it is proper to say that the question is not w'hether a state judge shall issue the writ when it appears upon the application for its allowance that the petitioner is in fact lawfully committed or detained under the authority of the United States, or shall proceed under the w'rit, and order the petitioner’s discharge, after it is admitted or proved that the party is so committed or detained; but whether the judge can entertain jurisdiction to inquire into, and require proof of, the authority of a party detaining the petitioner under color or pretense of the authority of the United States, and can order the discharge if the imprisonment and detention he unlawful. If the petitioner he iu fact lawfully detained under the authority of the United States,— that is, under the laws of the United States, for “ours is a government of laws, not of men,’’ — then neither state courts or state judges, nor the courts or judges of the United States, should discharge him on ha-beas corpus, except upon bail in cases where such court or judge is authorized to bail the prisoner. Before discussing the authorities above referred to, I shall copy the statement of them, as made in the printed matter of the - brief furnished; and, not having sufficient time to reduce this opinion to a more orderly method, I shall remark upon these cases, and refer to other cases, very much in the order in which they appear upon my notes made at the time I had them tinder consideration. I extract the citations in support of the position above stated, or, rather, in support of the position that Judge Lamont had no jurisdiction, as they are found in the brief, as follow's: (1) In re Husted (U. S. Army, in 1799; decision by Chief Justice Lansing; N. Y. Sup. Ct.) 1 Johns, Cas. 136. (2) In re Roberts (U. S. Navy, in 1809; opinion by Chief Justice Nicholson; Md. Sup. Ct.) 2 Hall, Law J. 192. (3) In re Ferguson (thirteenth U. S. infantry; in N. Y. Sup. Ct. full bench 1812; opinion by Chief Justice James Kent) 9 Johns. 239. (4) In re Sims (in 1850; opinion by Chief Justice Shaw; Mass. Sup. Ct.) 7 Cush. 285. (5) State v. Zulich (second regiment of District of Columbia volunteers 1862. In re Private Frederick Kniesch, Jr., a minor under IS, enlisted without consent, and held as a deserter; opinion by Judge E. D. Ogden; N. J. Sup. Ct.) 5 Dutch. [29 N. J. Law] 409. (6) State of New Jersey v. Assistant Surgeon John L. Janeway, U. S. Army, on habeas corpus to discharge Private Michael J. Welch, a minor in fourteenth New York volunteers, for illegal enlistment; opinion by Judge Ogden. N. J. Sup. Ct., after consultation with associated judges at Trenton [unreported], (7) In re Spangler (in 1863; in Mich. Sup. Ct.; concurrent opinions by Chief Justice Martin and Judges Chnstianey, Campbell, and Manning) [11 Mich. 298]. (8) In re Hopson, New York volunteers (1863; opinion by Justice Bacon; N. Y. Sup. Ct.) 40 Barb. 34. (9) In re Jordan (thirteenth New York volunteers, artillery; 1865: opinion by Justice E. D. Smith; N. Y. Snp. Ct.) 2 Am. Law Reg. (N. S.) 749. (10) In re Kiernan (a general service recruit, U. S. Army; in N.
The Case of Husted (No. 1) is not an authority against the jurisdiction of state courts or judges. It appears by the report of the case that Justices Radcliff and Kent were of opinion that the ai>plication for the writ ought to be refused on the merits of the case, as stated by the petitioner: while Justice Benson alone denied the jurisdiction. Justice Lewis and Chief Justice Lansing were for granting the writ; and were, of course, satisfied that the court had jurisdiction and ought to exercise it. The most that can be claimed is that two judges expressed no opinion as to their jurisdiction, and that, of the other three, two decided in favor of the jurisdiction and one against it. In connection with this case it may be properly remarked that Justice Kent, in his Commentaries (volume 1, pp. 400, 401 et seq.), discusses this question of jurisdiction (with others of a kindred character), and that he evidently understood that the Case of Husted had no bearing upon the question; for he does not mention it in that connection. He refers to the Case of Ferguson, 9 Johns. 239, as a case in which the question was much discussed, but not decided, and says: “The supreme court did not decide the question and the motion was denied on other grounds; but subsequently, in Re Stacy, 10 Johns. 328, the same court exercised jurisdiction in a similar case by allowing, and enforcing obedience to, the writ of habeas corpus. The question was therefore settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other states. It may also be observed that Chancellor Kent (then chief justice), in the first part of his opinion in the Case of Ferguson, before referred to, says that in Hus-ted’s Case the court gave no opinion on the question of jurisdiction, and further that in Stacy’s Case he did not, in delivering the unanimous opinion of the court, suggest any doubt of the jurisdiction of the state court; which jurisdiction he afterwards stated, in his Commentaries, was settled by that case. The firet edition of the first volume of the Commentaries, in which it is said that this question of the concurrent jurisdiction of state courts was settled, was published in 1820; and from that time to I860 the jurisdiction of the state courts had never, it is believed, been denied by any state court or judge, in any reported case. It was universally considered as settled (Hurd. Hab. Corp. p. 166), and the question was, probably, never seriously contested in this state from 181.5 to 1801. During my own sendee as judge in a state court, I exercised the power of discharging minors held uuder invalid enlistments in repeated instances, and without the jurisdiction being questioned; and I well know that the same authority was frequently exercised by other state courts and judges. In most of these instances not even a newspaper notice of the case was ever published. In Com. v. Fox, 7 Barr [7 Pa. St.] 336, Mr. •Justice Coulter, in 1847, declared that: “In Pennsylvania the jurisdiction of state judges and state courts has not before been doubted; and from the case of Com. v. Murray, 4 Bin. 487" (decided in 1S12), “down to the present time, numerous cases have occurred in which it has been exercised, some of them reported, iind many more unreported.” In Massachu
The following oases in which state courts and judges have exercised jurisdiction are only a few of the very great number of cases in which that jurisdiction has been maintained; only a very small proportion of such cases having been reported unless some important question other than that of jurisdiction was discussed: In Georgia, in 1808, State v. Wederstrandt, T. U. P. Charlt. 213. In Pennsylvania, in 1809, Ex parte Sergeants, 8 Hall, Law J. 206 (same case as Olmstead’s Case, Brightly, N. P. 9). In 1812, Com. v. Murray, 4 Bin. 487. In New York, in ISIS, In re Stacy, 10 Johns. 328. In Pennsylvania, the same year, Lockington’s Case, Brightly, N. P. 269. In Massachusetts, in 1814, Com. v. Cushing, 11 Mass. 67; Com. v. Harrison, Id. 63; Com. v. Chandler, Id. 83. In Pennsylvania, in 1815, Com. v. Robinson, 1 Serg. & R. 353. In New York, in 1816, In re Stephen, 1 Wheeler, Cr. Cas. 323. In New Jersey, in 1819, State v. Brearley, 2 South. [5 N. J. Law] 555. In New York, the same year, In re Wilson, 4 City H. Rec. 47. In Maryland, the same year, Ex parte Almeida, 2 Wheeler, Cr. Cas. 576. In Virginia, in 1821, Ex parte Poole, Nat. Int. Nov. 10, and Dec. 11, 1821. In New York, in 1827, In re Carlton, 7 Cow. 471. In Virginia, in 1834, Pleasant’s Case, 11 Am. Jur 257. In Massachusetts, in 1836, Com. v. Downes, 24 Pick. 227; Com. v. Aves, 18 Pick. 193. In Massachusetts, in 1841, Com. v. Taylor, 3 Metc. 72, and 4 Boston Law Rep. 274. In New Hampshire, the same year, State v. Dimick, 12 N. H. 194. In New York, in 1843, In re Sullivan, 1 N. Y. Leg. Obs. 314; U. S. v. Wyngall, 5 Hill, 10. In Massachusetts, in 1844, Lucas’ Case, 07 Niles’ Reg. 114; in 1847, Cases of Kimball, Moore, and Stone, 9 Boston Law Rep. 500; Row's Cape, Id. 510; Kinniston’s Case, Id. 548. In Pennsylvania, Com. v. Fox, 7 Barr [7 Pa. St.] 336. In Illinois, the same year, Case of Jane (a woman of color, and her four children, claimed as slaves by a citizen of Kentucky, in which case the late President Lincoln was counsel for the master) 73 Niles' Reg. 274. In Virginia, Com. v. Archer, 9 Boston Law Rep. 465. In New York, In re Belt, 1 Parker, Cr. R. 169. In Massachusetts, in 1851, Sims’ Case. 7 Cush. 285. In Ohio, in 1856, Collier’s Case, 6 Ohio St. 55; in 1859, Ex parte Bushnell, 9 Ohio St. 77. In Massachusetts, in 1860, Sanborn’s Case, 22 Boston Law Rep. 730, and 23 Boston Law Rep. 7, 8, 20.
Most of the following are later cases, viz.: Dobbs’ Case, 9 Am. Law Reg. 565; Phelan’s Case, 9 Abb. Prac. 286; Dew’s Case, 25 Boston Law Rep. (15 N. S.) 53; Com. v. Biddle, 6 Pa. Law J. (1 N. S.) 287; Kemp’s Case, (before the supreme court of Wisconsin in Jan., 1863) 16 Wis. 382; People v. Gaul (1865) 44 Barb. 98; In re Barrett, 42 Barb. 479; In re Beswick, 25 How. Prac. 149; Martin’s Case, 45 Barb. 143; Com. v. Holloway, 5 Bin. 512; Ohio R. Co. v. Fitch, 20 Ind. 498; Skeen v. Monkeimer, 21 Ind. 1; Cozzens v. Frink, 13 Am. Law. Reg. 700; Cases of Sullivan and Van Velsor, 1 N. Y. Leg. Obs. 314. And, as bearing upon his question of jurisdiction, see Williamson v. Berry, 8 How. [49 U. S.) 540; Wilson v. Mackenzie, 7 Hill, 95, and cases there cited; Williamson’s Case, 3 Am. Law Reg. 741; Ex parte Williamson, 4 Am. Law Reg. 27; Elliott v. Pearsol, 1 Pet. [26 U. S.] 328, 340; Teall v. Felton, 1 N. Y. 537, and Id., 12 How. [53 U. S.] 284; Delafield v. Illinois, 2 Hill, 159; Com. v. Robinson, 1 Serg. & R. 353; Smith v. Shaw, 12 Johns. 257; and Houston v. Moore, 5 Wheat. [18 U. S.] 1.
An examination of these cases will show that in some of them, generally the earliest cases in each state, the jurisdiction of the state tribunals is maintained by elaborate and entirely conclusive arguments, while in most of them the jurisdiction is assumed as though it were no longer open for discussion. Of those in which the question of jurisdiction was discussed at some length, the following cases are among those deemed most accessible to the profession: Olmstead’s Case. Brightly, N. P. 9; Lockington’s Case, Id. 209; Com. v. Murray, 4 Bin. 487; Com. v. Fox, 7 Barr [7 Pa. St.] 336; State v. Brearly, 2 South. [5 N. J. Law] 633; State v. Dimick, 12 N. H. 197.
The Case of Ferguson (No. 3), though be-
In the Case of Sims (No. 4) the jurisdiction of state courts and judges was not denied. The case was heard before Chief Justice Shaw, of Massachusetts, and his associates, Fletcher and Bigelow. The chief justice delivered the opinion of the court, and instead of declaring that the court had no jurisdiction, he argues at great length that the fugitive slave law was constitutional, and that the petitioner was lawfully held by virtue of legal process issued under it; and, to exclude the possible inference that the jurisdiction of the state court was denied or doubted, he said: “We do not mean to say that this court will in no case issue a writ of habeas corpus, to bring in a party held under color of process from the courts of the United States, or persons whose services, and the custody of whose persons, are claimed under authority derived from the United States. This is constantly done in cases of soldiers and sailors held by military and naval officers under enlistments complained of as illegal and void.”
The case in Dutcher’s Reports [29 N. J. Law] (No. 5) is one in which, as I understand it, the petitioner, a minor, had enlisted and actually entered the army, and had then deserted; and the con-ectness of the decision in that' case, and in others that have been cited, may therefore be maintained upon the principles which will hereafter be considered, but which have no application in the case of a petitioner who has never, in fact, been in the land or naval forces of the United States...-
In the Case of "Welch, before Judge Ogden (No. C), and in the Case of Spangler (No. 7), I understand the jurisdiction of the state court was denied, although the latter case was heard on the merits, and was in fact decided upon the ground that the party was illegally held as well as upon the ground of the want of jurisdiction.
The Cases of Jordan, before Judge Smith (No. 9), and of Hopson, before Judge Bacon (No. 8), denied the jurisdiction; but the authority of the latter case is no greater than that of Bailey’s Case, decided about the same time by Judge Mullin, the colleague of Judge Bacon, and in which the jurisdiction was maintained in an elaborate and able opinion.
Cases Nos. 10, 11, and 12, before Judge Barnard. No. 13, before Judge Russell, No. 14, before the recorder’s court in Charleston, in 1802, and Nos. 17, 18, 19, and 24, I have not had an opportunity to examine, and they may. for aught I know, deny the jurisdiction of state courts and judges in cases of this character. But, if they do, I cannot but think that cases decided at chambers under a press of business which precludes laborious research or careful deliberation upon the authorities, and which are reported, perhaps mistakenly, only in a newspaper, should have little weight as authority, against the cases which have been deliberately considered and decided by judges of the highest rank and authority, and whose learning and ability have not been excelled by any of the judges of their respective states.
The Case of Reynolds, alias Sloan, before Judge Lamont (No. 16), is the case of this petitioner. The proceedings in that case are now before me, having been made a part of the return in this case; and these proceedings show that the jurisdiction was not denied, but was in fact asserted and maintained. The citation of this case as one denying the jurisdiction forces me to the conclusion that the printed portion of the brief before alT luded to was not prepared by the learned and courteous young gentleman by whom it was forwarded, and that it was made up and printed for use before other tribunals, rather than this; for it is not believed that this gentleman has presumed so far upon the ignorance or indolence of the presiding judge of this court as to suppose that, with the record before him, he would regard the case before Judge Lamont as an authority against the jurisdiction of state courts and judges.
In the Case of Keeler (No. 22) the jurisdiction was questioned, although not denied; and the opinion expressed by Judge Judsou in the Case of Veremaitre (No. 23) was avowedly based upon the opinion of Chief Justice Kent in Ferguson’s Case, which Judge Judson erroneously assumed had the concurrence of Mr. Justice Thompson; and overlooking the Case of Stacy and many similar cases, as well as the statement of Chancellor Kent in his Commentaries, he erroneously and very strangely declared the authority of Chief Justice Kent’s opinion in Ferguson’s Case remained unshaken! In view of these facts, and the additional fact that this Case of Veremaitre has, during the present month, been deliberately overruled by Judge Ship-man, with the concurrence of Mr. Justice Nelson and Judge Blatchford. See New York Tribune of Friday, June 14th, 1SC7, which gives Judge Shipman’s opinion in full. This
The Case of McDonald (No. 20) and the case [U. S. v. Peters] in 5 Cranch [9 U. S.] (No. 26) have been hastily examined, without finding therein anything which justifies the citation of either as an authority against the jurisdiction of state courts and judges.
Sifford's Case (No. 27) may properly be cited as containing dicta opposed to the jurisdiction, although the case was in no respect like this.
Before proceeding to examine other eases cited in support of the point now under consideration, it may be well to remark that, in many of the cases cited against the jurisdiction of state courts and judges, the question was not necessarily determined, as the petitioner or other party detained was decided to be legally held in custody; that in othere they were held as deserters by reason of their haying deserted whilst, actually in service under an illegal or merely voidable contract of enlistment; and that in others the term “jurisdiction” has been loosely used, and its existence in the particular case apparently denied, when it is quite certain that jurisdiction would have exercised, and the prisoner discharged, if the authority under which he was held had not been deemed valid and legal. And it is believed that some of the cases most frequently relied upon as denying the jurisdiction will not, when carefully examined, and after the language of the judges has been considered deliberately in connection with the actual facts of the case, appear to deny the jurisdiction to discharge if legal authority to detain is not shown, or be deemed of much weight when compared with many of the numerous cases in which the jurisdiction has been maintained.
In the case of State v. Plime, T. U. P. Charlt. 142, which has been sometimes cited in opposition to the jurisdiction, it appeared by the return to the habeas corpus that the. prisoners (two seamen) had been committed for desertion from their respective vessels by a justice of the peace, pursuant to an act of congress [12 Stat. 753]. The court said: “The proceedings of the justice appear to be regular under this act; and, though this court hath not denied the benefit of the writ of habeas corpus, yet it is conceived that it possesses no jurisdiction in the present case. The powers given to the justice and master are derived from the law of the United States, and whether exercised properly or improperly by the one or the other is not a subject for the investigation of this court.” All this is consistent with the exercise of jurisdiction, and the requirement of proof that the detention is lawful, and would not have prevented the discharge of the seamen if the proceedings against them had not been authorized by the act; but the court said they were so authorized, and that they appeared to be regular. And neither a state nor a United States judge would have jurisdiction (in tlie sense in which this word is frequently used, as synonymous with the legal and rightful exercise of judicial authority) to discharge under such circumstances; for the reason that it is well settled that a writ of iiabeas corpus can never be used as a cer-tiorari or writ of error for the review and reversal of the adjudication of an inferior tribunal, when that tribunal has jurisdiction, and its proceedings are not void, but legal and regular on their face. People v. Cassels, 5 Hill, 164; People v. Cavanagh, 2 Parker, Cr. R. 650; Com. v. Keeper, 1 Ashm. 10; Com. v. Lecky, 1 Watts. 68.
In the case of Rhodes (No. 14), in South Carolina (2 Wheeler, Cr. Cas. 559, 2 Niles’ Reg. 264), the question presented was, in principle, much like that presented in the ease of State v. Plime, in Georgia. Rhodes had been committed, and was detained for trial in the courts of the United States, in virtue of a warrant of commitment under the hand and seal of a justice of the peace of South Carolina, on a charge that the prisoner had forged or counterfeited a number of protections for American seamen. This, the judge held, was no offense against the laws of South Carolina, but was an offense against the laws of the United States; £-nd (as his opinion slates) he was called upon, on the return of the writ of habeas corpus, to discharge Rhodes from custody on the ground that the warrant contained no accusation under the laws of the state, and that the magistrate who committed him, being only an officer of the state, had no authority to commit him for an offense against the United States; it being contended that the 33d section of the judiciary act of the United States of 1789 [1 Stat. 91], which in terms authorizes such commitments, was unconstitutional and void. The judge discussed the question thus raised at length, and with great ability, and he decided that the 33d section of the act of 1789. which authorizes justices of the peace to commit for trial persons properly charged before them with criminal offenses against, the laws of the United States, is constitutional; and, as there was no other pretense that the warrant of commitment was irregular or insufficient, he refused to discharge the prisoner. He was, in fact, held to be legally in custody to await his trial for an offense which was triable in the United States courts alone, and, as the question of his guilt or innocence could only be legally determined on a trial in those courts, the judge very properly decided he had no lawful right to discharge him, on habeas corpus, on the grounds alleged. A judge of the United States courts would have made the same decision. It is true the judge declared that, under the circumstances of that case, he had no jurisdiction. If by this he intended only to say that he had no lawful authority to discharge, he was correct; and it does not satisfactorily appear from his opinion that he would have
The Case of Roberts (No. 2), in Maryland (2 Hall Law J. 192), is also cited against the jurisdiction; but the jurisdiction to make inquiry and require proof of the legality of the detention was not, in express terms, denied. On the contrary, I think it was substantially asserted. It was the case of an enlistment; and Judge Nicholson, who decided that case, in the commencement of his opinion, said: “The petition upon which the habeas corpus issued in this ease contained a statement of facts, certified upon oath, extremely different from those which have appeared in evidence. The petition stated that Emanuel Roberts, the son of the petitioner, had been seized, and forcibly carried on board the brig Syren, commanded by Capt. Gordon, and lying in the basin of Baltimore, where he had been detained since the 10th of April. The statement detailed so gross a violation of the law, and intimated to the court something so extremely like impressment, that no hesitation was felt in granting a writ which every citizen illegally held in custody has a right to demand. If the facts as stated in the petition had been supported by evidence, the party detained must have been discharged, whether the detention had been by officers of the United States or others, and I would most certainly have held them to bail to answer upon a criminal prosecution.” And in another part of his opinion he said: “The power of the court to examine into the regularity of the proceeding is only contended for on the ground that the citizens of the state are entitled to its protection; that the writ of habeas corpus is all important to secure the liberty of the citizen; and that every man may claim relief under it. These positions cannot be denied, and might apply very forcibly to the case under consideration, if there was no contract or agreement to service in question.” Again he said: “An extreme case has been supposed, in which I acknowledge that I would interfere without hesitation. It is asked, if a child of eight or ten years of age had been enlisted, would the court refuse to diseliarge him. I answer: No, I would discharge him, because of his incapacity to make a contract. If in such a case I should exceed the technical limits of my authority, I should have the approbation of all good men for resisting oppression under the color of law.” It is true that there is a portion of the opinion which apparently denies the judge’s jurisdiction; but if this is to be taken as a denial of his jurisdiction to inquire into the cause of detention, and to discharge if the imprisonment was illegal, there is reason to doubt the perfect accuracy of the report, for a judge must have very confused ideas of a question of jurisdiction, and of his duty, who determines that he has or has not jurisdiction as he may or may not regard the case before him as an extreme one; who decides that he has jurisdiction in a case when he determines to adjudge a contract void because of an incapacity to contract, and that he has no jurisdiction when he adjudges it void because it was made in violation of law; or who considers it to be a sufficient and proper excuse for deciding contrary to the convictions of his judgment, upon a question of jurisdiction or other question of law, that he should thereby gain the approbation of others. Besides, Judge Nicholson, in this same opinion, states that he had not only taken jurisdiction, but had discharged the parties, in the Case of Adair and Ogden, who, he says, “had been arrested by Judge Wilke-son, in New Orleans, on a suspicion of being connected with Burr in certain treasonable practices, and who were confined in Fort Mc-Henry to await the order of the secretary of War.” In short, he appears, from his opinion in the Case of Roberts, to have taken jurisdiction and discharged when he thought proper to discharge; and to have refused to discharge, suggesting a want of jurisdiction as the grounds of such refusal, when he thought a discharge ought not to be granted, in case he had jurisdiction. Surely the case is no authority against the jurisdiction, for in this case, as well as in the Case of Adair and Ogden, he seems to have decided, riot a question of strict jurisdiction, but simply one of judicial duty, and to have used the term “jurisdiction” in the sense of the rightful and legal exercise of judicial authority to discharge the petitioner; and it is in this sense that it has been frequently used when the jurisdiction has been denied.
These three cases, decided in Maryland, Georgia, and South Carolina, have been more than once cited as denying the jurisdiction of the state courts and judges, but a careful examination of them will, it is believed, show that they should have very little weight as against the jurisdiction of state courts and judges to require proof of the legality of a detention under pretense of the national authority. They are certainly decisions against the power to discharge the prisoners in the particular cases then under discussion, but the question of jurisdiction was not necessarily decided in either, because, in each, the prisoners were decided to be legally held in custody. In fact, these cases, with the exception of that of Roberts, were cases where the prisoners were decided to be legally committed, by regular process, for offenses against the laws of the United States; and in the Case of Roberts he was decided to be legally held to service by a valid contract of enlistment. And it is deemed quite certain that in each of these cases the petitioner would have been discharged if it had appeared that he was unlawfully detained.
Mr. Justice Nelson’s charge to the grand jury at New York, in 1851 (No. 25), has been cited, at different times, as denying the jurisdiction of state courts and judges to inquire into alleged unlawful imprisonments under pretense of the authority of the United States, but it is believed that this charge of Mr. Justice Nelson does not deny the jurisdiction of state courts or judges when such imprisonment is unlawful. He expressly excludes the inference of such a denial, for he says (1 Blatchf. 635, Append.); “It is proper to say, in order to guard against misconstruction, that I do not claim that the mere fact of the commitment or detainer of a prisoner by an officer of the federal government bars the issuing of the writ or the exercise of power under it. Far from that Those officers may be guilty of illegal restraints of the liberty of the citizen, the same as others. The right of the state authorities to inquire into such restraints is not doubted, and it is the duty of the officer to obey the authority in making a return. All that is claimed or contended for is that 'when it is shown that the commitment or detainer is under’ (not simply alleged to be under) ‘the constitution or a law of the United States, or a treaty, the power of the state authority is at an end, and any further proceeding under the writ is coram non judice and void.’ In such a case, — that is, when the prisoner is in fact held under process issued from a federal tribunal under the constitution or a law of the United States, or a treaty, — it is the duty of the officer not to give him up, or allow him to pass from his hands, in any stage of the proceedings.” In other words, if the party is held under a proper warrant, issued under the authority of the United States, the United States courts alone have the right to proceed and determine the questions which are properly to be determined, in the case commenced by the arrest of the party, under the laws of the United States; and it is only when it is shown, in the due course of judicial inquiry, that the party is lawfully held under the laws of the United States, that the powers of the state court or judge are at an end.
In the case of Norris v. Newton (No. 21) [Case No. 10,307], cited as denying the jurisdiction of state officers, Judge McLean took substantially the same ground; although there may be portions of his opinion which, standing alone, might indicate a denial of jurisdiction. “I have no hesitation,” says he, “in saying that the judicial officers of a state, under its own laws, in a ease where an unlawful imprisonment is shown by one or more affidavits, may issue a writ of habeas corpus to inquire into the cause of detention. But this is a special and limited jurisdiction. If the plaintiff, in the recapture of his fugitive slaves, had proceeded under the act of congress [of 1793 (1 Stat. 302)], and made proof of his claim before some judicial officer in Michigan, and procured the certificate which authorized him to take the fugitive to Kentucky, these facts, being stated as the cause of detention, would have terminated the jurisdiction of the judge under the writ. Thus, it would appear that the negroes were held under federal authority, which in this respect is paramount to that of the state. The cause of detention being legal, no judge could arrest-and reverse the remedial proceedings of the master.” All this is entirely consistent with the jurisdiction of the state court to inquire into the legality of the imprisonment of the party, until it is shown that he is legally held under the authority of the United States, and consistent also with the rightful exercise of the authority of the state court to discharge him, if the legality of the detention is not established. In the case supposed by Mr. Justice McLean, a United States judge would not be justified in reversing!, on habeas corpus, the decision of the certifying officer if all bis proceedings, appeared to be regular and proper on their face; for an act of congress having given the certifying officer .the authority and jurisdiction to adjudicate the questions arising upon the application for his certificate, and also declared that such certificate “should be a sufficient warrant for removing the said fugitive from labor to the state or territory from which he or she fled,” (Act of 1793; 1 Stat. 302, § 3), no judge of the United States court, while that law was enforced, could, on habeas corpus, have reversed the adjudications of the certifying officer, if such adjudications were certified in due form, but could only discharge because such certificate of adjudication was informal, defective, or irregular, and therefore insufficient upon its face to justify the detention of the party. People v. Cassels and People v. Cavanagh, ubi supra. Perhaps the decision of the certifying officer might have been reviewed by the circuit court on certiorari, but on this question I express no opinion. Mr. Justice McLean, in the case of Norris v. Newton [supra], held that the plaintiff, “having legally arrested his slave,” — as the supreme court of the United States has decided, in the case of Prigg v. Pennsylvania [16 Pet. (41 U. S.) 539] he might then lawfully do, — “and having returned the fact of such arrest, and that they were fugitives and his slaves, and these facts showing that the fugitives were in legal custody being admitted, the state judge could exercise no further jurisdiction in the case.” This, and his reasons for such decision, will appear from the following extracts from his opinion: In the sentence immediately following the extract above given, and in speaking of the proceedings on habeas corpus before the state judge, Judge McLean said: “And the return made by the plaintiff, being clearly within the provisions
The cases of Ableman v. Booth and U. S. v. Booth (decided together, and reported together in 21 How. [62 U. S.] 506), remain to be considered. Since these cases were first reported, they have always been most relied upon by those who have denied the rightful authority and jurisdiction of state courts and judges in enlistment cases. Indeed, it could hardly be otherwise, for, without the grounds for argument which these cases furnished, the denial of jurisdiction might well be deemed unworthy of a moment’s consideration. As cases decided by the court of the last resort, and as the only apparent justification for the decisions made within the last seven years denying the jurisdiction under consideration, these cases, and the opinion delivered therein, by Mr. Chief Justice Taney, require a very careful and deliberate examination. It must, however, be apparent that these cases did not necessarily require the decision of the question now under discussion, for they were brought up by a writ of error prosecuted for the purpose of reversing the decisions and judgments of the supreme court of Wisconsin, declaring that Booth was illegally imprisoned and ordering his discharge. The facts showing that Booth was legally detained in custody under the laws of the United States, as expounded by the supreme court at Washington, were fully proved or admitted before the court of Wisconsin, and therefore there was no question before the court at Washington in regard to the jurisdiction, authority, or duty of a state court or judge in a case where there was no proof of the legality of the detention. For these reasons, the case of Ableman v. Booth is not a binding authority upon the question now under consideration. Nevertheless, the paramount authority of the court, the purity, learning, and wisdom of Chief Justice Taney and his associates, entitle the opinion of the court in Booth’s Case to the highest consideration and respect; and if it had declared in express and unmistakable language that state courts and judges had no jurisdiction to inquire into the legality of the detention of a person alleged to be lawfully held as an enlisted soldier, I should certainly feel that I ought not to disregard it. But waiving, for the purpose of this examination, the consideration that the alleged opinion of the chief justice, so far as it is applicable to the present question, is a mere obiter dictum, and therefore not a binding authority, I shall proceed to consider what conclusions in regard to the opinions then entertained upon the question of jurisdiction may be properly drawn from the opinion delivered by the chief justice.
The language of the chief justice must be considered in connection with the acknowledged facts of tiie case then under consid-
From these extracts it will be seen that the authority of 1he state court or judge to issue the writ is not questioned by Chief Justice Taney, “provided it does not appear when the application is made that the person imprisoned is in custody under the authority of the United States.” This is not only in accordance with the views of Judges Nelson and MeUean, as before given, but is also substantially in accordance with the provisions of the New York Revised Statutes. These statutes, which were prepared by the ablest lawyers of the state, and passed by a legislature containing many eminent members of the bar, require our courts and judges to grant the writ of habeas corpus to all persons restrained of their liberty, under any pretense whatever, unless they be detained: (1) By virtue of process from any court or judge of the United States, having exclusive jurisdiction in the case; or (2) by virtue of the iinal judgment or decree or execution thereon of any competent tribunal of civil or criminal jurisdiction, other than in the case of a commitment for any alleged contempt; and the parties are required to be remanded in cases where the authority to detain is claimed under the laws of the United States, without further inquiry into the legality of their detention, only when it is shown that they are detained by virtue of process issued by a court or judge of the United States in a case where such court or judge has exclusive jurisdiction. These statutes were intended to define, and it is believed do properly define, with due legal precision, the legal duty of state courts and judges in such cases. In considering his opinion, it must be remembered that Chief Justice Taney is speaking as a judge, and, when he speaks of a person being in custody under the authority of the United States, he means legally in such custody, under and in pursuance of the laws of the United States. He does not say under the authority of a department or officer of the United States, but under the authority of the United States, and that authority can only be given by the constitution and the laws of the Union. It is expressly conceded by Chief Justice Taney that the state court or judge has a right to inquire for what cause and by what authority the prisoner is confined, and the exercise of such right to inquire is clearly the exercise of jurisdiction. And, if he has such right to inquire, it must also be conceded that he has the right to make that inquiry in the usual mode of judicial proceedings, and as the basis of judicial action, and to discharge the prisoner if it be ascertained, upon such inquiry, that he is not lawfully held in custody. .It is also expressly conceded that it is the duty of the marshal, or other person, to make known to the judge or court by a proper return, the authority by which he holds the prisoner in custody; and it is clear that there can be no duty to make a return unless the court or judge has jurisdiction to require it. To concede the right of the state judge to require, and the duty of the United States officer to make, a return, is but idle mockery, — a hollow and false pretense of respect for the judicial authority of the states, — unless the right to discharge exists, when the detention is illegal. It is also said by the chief justice that “after the return is made, and the state judge or court is judicially apprised that the party is in custody under the authority of the United States, they can proceed no further”; in other words, he cannot then discharge the prisoner. He concedes that a return is to be made, and that the judge or officer must in addition be judicially apprised of the facts which terminate his jurisdiction, — but how judicially apprised? Clearly, by legal proof of those facts, if the return is traversed or denied, — for a judge or court, as such, and in respect to the facts in controversy in such cases, can know nothing judicially, can be judicially apprised or judicially informed of nothing, except by the admission of the parties, or by legal proof, in the due course of legal proceedings. Until so judicially informed or apprised, the jurisdiction is not questioned by the chief justice. And if it were not intended to indicate that this should be done in legal form, by due proof in the regular course of judicial proceedings, why was the proper formal return required, and the term “judicially” used and repeated in this connection? It could be for no other purpose than to show that the facts must be established in such legal manner as to make them proper subjects of judicial cognizance and action, for the term “judicially” requires it to be done “in a judicial manner or in legal form”; and it is possible that in the selection of the term “apprised” the chief justice had in mind the technical definition of that word when derived from the French “apprise,” and meaning the ordinance by which the sentence of a superior judge is declared to an inferior. Webst. Dict. (Folio, Springfield, 1865). Considering the language of Chief Justice Taney in connection with the facts of the case before him, it can scarcely be doubted that he must be understood to mean that until the person who holds the prisoner in custody exhibits the authority under which he holds him, and proves that such authority is, in fact and law, the authority of the United States, — in other word-, proves the facts upon which such authority rests, if facts are denied, — the jurisdiction, authority, and power of the state court or judge is un
As it may still be insisted that there is some slight doubt whether the chief justice intended to declare that the facts showing that the prisoner was held under the authority of the United States, must, if denied, be proved, — as well as actually exist and be returned, — before the state court or judge can be ousted of his jurisdiction, or whether he intended to be understood that a mere return of such facts by the proper officer without proof, if such facts really existed, was sufficient to terminate the state jurisdiction; and as it is possible, although not at all probable, that the latter supposition is correct, and that he had not sufficiently considered the consequences of the adoption of such doctrines, the matter will be considered in that possible aspect of the case, and in view of such consequences, and also in view of the consequences of disregarding the decision of the state court or judge in case he erroneously decides to discharge the prisoner after all the facts are before him. In the cases before the chief justice, there could be neither difficulty nor doubt as to the duty of the Wisconsin court, even if it had jurisdiction; or in regard to the legal right to detain the prisoner. The supreme court of the United States and every supreme or superior court of a state which had previously considered the question, had decided that the act of congress under which the prisoner was held was constitutional; and there was the very highest degree of moral certainty that the supreme court of the United States would, whenever the question was presented, affirm the previous decisions. And there could be no difficulty in the future in making proper proof of the marshal’s authority; indeed, the facts upon which that authority rested were not denied in the state court, and the statutes of their own state expressly require them to remand the prisoner. In such cases a marshal might, perhaps, not hesitate to stand upon his warrant and repel force by force, and rely upon this opinion of the chief justice as his justification, even after the state court had decided against his clearly-proved authority. But suppose a different case; one depending on questions of great difficulty, upon which the opinions of the ablest lawyers and of courts of the. highest authority were known to differ, and where there was a probability that on a future occasion the marshal or other officer might be unable to procure the witnesses necessary to make proof of the facts. In such cases the state authorities would be compelled to decide at their peril whether they would enforce the decision of their own tribunal, and the marshal or other United States officer would be compelled to decide at his peril whether to hold or discharge the prisoner. As each might call for and obtain assistance, a serious conflict, if not a conflict of organized and armed forces, might ensue. But the marshal would also be compelled to decide for himself, at his peril, in respect to his civil or criminal liability. If he hold his prisoner, and be sued for such imprisonment, and if the highest court of the state decide against him, he will be mulcted in damages, unless the supreme court of the United States, on writ of error, shall reverse that decision. And, in this state, if he hold him with intent to cause him to be sent out of the state against his will, he will be liable, under our statute, to imprisonment in a state’s prison not exceeding ten years. 2 Rev. St. N. Y. (4th Ed.) 857. If the supreme court of the United States reverse the decision of the state courts, the judgment against him is avoided, and the detention of his prisoner justified. But, if the supreme court of the United States decide against him, he must pay the damages, or suffer the punishment awarded; although his intentions may have been pure, and his only fault a mere error in judgment. If the marshal, on the contrary, should discharge his prisoner improperly, in consequence of the opinion of the state court or judge, he may in some cases render himself liable in damages, to the United States, or other party interested, in the detention of his prisoner. It is evident that the doctrines of Chief Justice Taney must, under any construction of his opinion, sometimes lead the officers of the United States into difficulty, and produce a serious conflict between the authorities of the several states and those of the United States; but this conflict, in ease of a difference of opinion between the judicial and other authorities of the United States and of those of the states in respiect to the char
But it is not in such cases only that United States officers as well as state officers are necessarily called upon to decide at their peril questions of law or fact upon which their official action should depend. A sheriff or a marshal has an execution against the goods of A., and is urged to take and sell, under that execution, goods claimed by B. as his own property. He must decide the question of ownership at his peril, for, if he take the goods of B. under his execution, he is liable to respond in damages, or if he return his execution nulla bona, when he might have taken the defendant’s goods and satisfied the execution, he will be liable for his neglect. Again, it is well settled that goods or persons actually in custody of a sheriff or marshal under the lawful process of the courts of a state, or of the federal courts, cannot be taken out of that custody by aD officer of the other government in virtue of process issued by its courts. Hagan v. Lucas, 10 Pet. [35 U. S.] 400; Norris v. Newton [Case No. 10,307]; Taylor v. Carryl, 20 How. [61 U. S.] 583. But the party interested in the process in the hands of the second officer may suppose and allege that such pretended process is forged, or void for want of jurisdiction, or other cause, and may furnish prima facie proof of the truth of such allegation. The second officer may act upon such supposition, but he does so at his peril, and is liable to an action if he cannot maintain the truth of the allegations.
But it is unnecessary to go out of the record and suppose cases for further illustration, for the one now under consideration is perfectly adapted to my present purpose. The officer in this case arrested and held the petitioner as a deserter, at his peril; and, if the petitioner has never been in the land or naval forces of the United States, even the conviction and sentence of the petitioner by a general court-martial would not relieve the officer from liability for all the damages sustained by the petitioner in consequence of his illegal arrest and imprisonment. Wise v. Withers, 3 Cranch [7 U. S.] 331; Smith v. Shaw, 12 Johns. 257.
But it has lately been claimed in other cases, as it was claimed in this, that under the case of Ableman v. Booth a state court has no authority to inquire into the truth of the facts alleged in a return to a writ of habeas corpus, or to decide upon their legal effect; in other words, that a state court has no jurisdiction to inquire whether a person claimed and held as a soldier has ever enlisted, or, if he have enlisted, whether he is an infant, and his enlistment therefore illegal and void, if the return sets forth that he is legally in custody under the authority of the United States. In short, it has been claimed that a return, whether true or false, showing that the prisoner is held under color of the authority of the United States, per se. and at once, deprives a state court or judge of jurisdiction. Although this conclusion appears to have been acted upon by different judges, in some late cases, it is believed that it has been sufficiently shown that this extraordinary claim cannot be maintained. Taking the language of Chief Justice Taney in its worst sense, it certainly requires, not only a return of the process, or other facts showing that the prisoner is held under the authority of the United States, but also the actual existence of such facts, process, or authority, and that the state court or judge should be judicially apprised of their existence before the jurisdiction of the state court or judge is at an end; and the whole opinion proceeds upon the ground that the prisoner is either proved to be, or actually is, within the dominion and jurisdiction of the United States, to the exclusion of the state jurisdiction, which he cannot be unless held under the laws of the United States. And it
It may be well to consider for a moment the consequences of the extreme doctrines of the judges who have denied their own jurisdiction, and refuse to inquire in regard to the truth of a return, or the fact of the validity of an enlistment, in cases somewhat like the present. If these doctrines are to be maintained, they are to be maintained in cases where only the interests of individuals are concerned, as well as in the cases in which it is assumed that the interest of the general government, or of the war department are involved. An individual may be arrested upon a forged warrant, or capias ad satisfaciendum, purporting to have been issued by a United States officer or court, or under the pretense of a warrant for his extradition to Canada; or as an alleged deserter, when he has never been a soldier. The arrest may be made at Ogdensburg or Plattsburg. and no United States judge having jurisdiction may be within four hundred miles of the place of his arrest, whilst a judge of the supreme court of the state is, perhaps, within a stone’s throw. Must his counsel go to Buffalo or Cooperstown for a habeas corpus, or can he have one from a state judge, and there at once establish the forgery, or prove the fact that there is no warrant for his extradition, or that he has never been in the military service? Let us suppose that before the repeal of the fugitive slave act a free negro had been arrested and claimed as a slave, and was being carried out of the state under the alleged right of a master to arrest his slave without process, or under a forged certificate purporting to be signed by a United States judge or commissioner. Would a state judge, upon a return setting up that he was a slave and legally held as such, or that he had been arrested as a slave and was legally held under such a certificate and the laws and authority of the United States, declare that the return, notwithstanding its allegations were traversed and denied, was sufficient to oust him of his jurisdiction, on habeas corpus: or would the alleged fugitive be permitted to allege the forgery in his traverse to the return in the one case, or the fact that he was born in this state and was free, in the other, and then prove the facts on the hearing, and thus obtain his discharge?
In further considering the question under discussion, it may be well to inquire still further into the practical operation of the principle and practice contended for by those who denied the right of the state judgfe or court to inquire into the truth and the legal effect of the allegations made In the returns of a military officer. If this principle and practice are to prevail in the state courts, they must, for the same reasons, be adopted in the courts of the United States; for those courts are as scrupulously careful not to intrude upon the exclusive dominion of the state authorities as the latter can properly be to abstain from intruding upon the dominion and denying the authority of the United States. Hagan v. Lucas, 10 Pet. [35 U. S.] 400; Taylor v. Caryl, 20 How. [61 U. S.] 583; Freeman v. How, 24 How. [65 U. S.] 451; Norris v. Newton [supra]. If, therefore. a mere assertion, without proof, of a right to hold a prisoner in custody under the authority of the United States, or the mere naked return of an officer or other person alleging facts from which such authority must be legally inferred, ousts a state court of all jurisdiction to inquire into the tAth of the assertion, and to discharge the prisoner if no such authority exists, then, by parity of reasoning, a mere assertion, without proof, of similar facts in regard to a prisoner claimed to be in custody under the authority of the state, would, in the same manner, oust a United States court of all jurisdiction to inquire on habeas coipus into the legality of the imprisonment. Thus all the facts necessary to the complete denial of the privilege of the writ of habeas corpus, and the perpetual incarceration of the prisoner, would be the making of a false return, suited to the occasion, whenever the legality of the imprisonment was assailed in the courts of the state or in those of the United States. The prisoner might apply first in the state court, then in the United .States court, then in the state court again, and so on indefinitely; and counsel might be kept flying, like a shuttlecock, between two courts, in consequence of being thus beaten, alternately, by the one and by the other. That such a state of things cannot legally exist, and ought not to have deliberate sanction of the courts of the United States or of the states, has been, it is believed, sufficiently shown. The authority of the decisions of state courts and judges in support of their jurisdiction is absolutely irresistible and overwhelming, and if any doubt can be entertained of the correctness of the proposition that the opinions of Chief Justice Taney and of Justices Nelson and McLean must be considered as affirming that the fact that the prisoner is legally held under the authority of the United States must not only be alleged, but proved, in order to oust the jurisdiction of a state court or judge in a habeas corpus case, there can certainly be no doubt that all those judges require, not merely the allegation or return of facts showing such authority, but also their actual existence — the actual truth
Upon the most careful and deliberate consideration of the authorities that I have been able to give, I am of the opinion that the jurisdiction of state courts and judges, in cases like this, and in cases of persons detained by the United States officers under color of illegal enlistments, or other pretense of authority derived from the United Slates, where no such authority exists, is well and properly established by an irresistible preponderance of authority, and that state courts and judges may properly say, as was said by the supreme court of New Hampshire in State v. Dimick, 12 N. H. 197: “If the laws of the United States justify the detention of the applicant, there is nothing illegal. If they do not, it is not a case arising under the laws of the United States, although it may be under color or pretense of those laws. But a mere pretense of authority under the laws of the United States is no bettor than any other pretense. It neither confers an exclusive jurisdiction on the courts of the United States, nor ousts the ordinary jurisdiction of the courts of this state. Nor can it make any difference that the illegal imprisonment, if there be one, is by an officer of the United States army. The courts of the United States have no exclusive jurisdiction over their officers.”
It was further urged, in the brief before referred to, that the decision of Judge Lamont was a bar to the proceeding in this court, although he had no jurisdiction, and that the petitioner, having been produced before that officer and been remanded, was estopped from taking advantage of the want of jurisdiction, to the prejudice of the gov-eminent; but the conclusion I have reached upon the question of jurisdiction renders it unnecessary that I should consider whether, under the well-known rule that consent cannot confer jurisdiction, there is anything in the proceedings before Judge Lamont which should give to proceedings without jurisdiction the effect which is given to proceedings where the jurisdiction is not questioned; for certainly the petitioner cannot be estopped by such proceedings when the officer had no jurisdiction, if like proceedings are no bar when had in a court of com-peteut jurisdiction. Whether the proceedings before Judge Lamont (his jurisdiction being established) are a bar to the writ prosecuted here will now be considered,
That there have been several decisions, in the courts of different states, declaring that a prior decision under a previous writ of habeas corpus is conclusive, while the ques-tion remains the same, is well known, but some, if not most, of them have proceeded upon the ground that by the laws of the state the first decision could have been reviewed by writ of error. No such review of the decision of a judge of this court, or any court or judge of the United States, is allowed, under the laws of congress, in a case like that before Judge Lamont; and a prior decision by a circuit court of the United States in such a case is no bar to a second hearing upon the merits before a single judge of the same court, or other proper officer. In re Kaine [Case No. 7,597], If a decision of the circuit court would be no bar, it would seem that the decision of Judge Lamont should have no greater effect, even though, by the law of the state, a writ of error might have been prosecuted upon his decision. The Case of Kaine, ubi supra, could not have had a more thorough examination or more deliberate consideration. It had been before the circuit court and supreme court of the United States before the final decision by Mr. Justice Nelson, and no better guide than the decision of that learned jurist, made under such circumstances, need be desired. As the case is decisive of the question, and as Judge Nelson, in his opinion, discusses the case of Mercein v. People [25 Wend. 64.], which was relied on here, by the respondent’s counsel, I extract from the opinion so much as relates to this question: “The learned counsel appearing on behalf of the British authorities has objected that the decision of Judge Betts, sitting in the circuit court, upon the return of the writ of habeas corpus before that- court, being a court of competent jurisdiction to hear and determine, the question whether the com-mitmeut under the commissioner’s order or warrant was legal or not, is conclusive, and a bar to any subsequent inquiry into the same matters by virtue of this writ. I do
But it is insisted that when the return to a writ of habeas coipus alleges that the prisoner is held to answer for the crime of desertion, of which the military courts of the United States have exclusive jurisdiction, courts of civil jurisdiction cannot inquire into the facts of his enlistment, but must remand him for trial by the court which has jurisdiction of the offense charged. This makes it necessary to inquire what foundation there is for the claim thus made, and also what is the main question now before this court for determination.
After what I have said, in the citation of cases I have made, I shall not stop to inquire whether a return that the prisoner is held as a soldier and deserter, without any proof of the fact of his being actually held as such deserter, requires the petitioner to be remanded; It is the proof of the fact, not of desertion, but of the actual holding for trial on that charge, and that the party is subject to the jurisdiction of the military tribunal, which requires the civil court to remand the prisoner. In the case of Com. v. Fox, 7 Barr [7 Pa. St.) 336, cited by the counsel in support of his position, the petitioner was discharged by the supreme court of Pennsylvania, by reason of the invalidity of his enlistment, although it appears from the report of the case that he had enlisted and deserted and then surrendered himself, and had also been brought before the court of common pleas under a previous writ of habeas corpus, and had been remanded. In Com. v. Cushing, 11 Mass. 67, a prisoner who had enlisted and deserted, and had been brought before general court-martial, and there admitted his guilt, and who was then actually in custody under the proceedings or sentence of the military court, was discharged by the supreme court of Massachusetts on the ground that, he being a minor, his enlistment was void. And. unless my memory is at fault, I have seen the report of another case in which the same court discharged a minor on like grounds, although he was then undergoing the sentence of a court-martial upon his conviction of the military offense of mutiny, committed while he was actually in service. I have not, however, heretofore followed these decisions, and have, in repeated instances, refused to grant a writ of habeas corpus when it appeared by the petition that the minor, although his enlistment was not binding, had in fact been in the military service, and had actually left such service, and was held for trial as a deserter. In such cases I felt justified in following the doctrines of the case of Wilbur
It was insisted upon the final argument by the learned attorney of the United States that it had been shown that proceedings were pending before a competent military court having jurisdiction of the offense of desertion, and in which the matter here in issue might be tried, and that this court should therefore remand the prisoner, and allow the question of jurisdiction to be tried and determined by the military court. As this point involves a question of fact, as well as of law, I will first refer to the evidence bearing upon the proposition.
That the petitioner was arrested on or about the seventeenth of February last, under an allegation that he was a deserter, was not denied. A formal charge, alleging his desertion, and bearing date February 20, 1807, was produced at the hearing; but there was no proof of its existence prior to the 8th of May, when it was first seen by the lieutenant having the general charge of the law business at headquarters, general recruiting service, where said charges and specifications bear date; and it appears that on that day they were forwarded by Gen. But-terfield, in command at such headquarters, to the commanding general of the department of the east, with the request that they should be returned, if the order for the trial of the party wds granted. It also appears by the indorsement thereon, dated “Department of East, May 11th, 1867,” that Private Sloan was directed to be tried by the general court martial then in session in New York City, “provided that the witnesses required are, or will be, in this department.” There was no proof of the order under which such court-martial was organized, or that it was ordered before the month of May, and there is little difficulty in reaching the conclusion that this general court-martial would have no jurisdiction of the person of the petitioner, or authority to try him upon the charge referred to, prior to the 11th of May, 1807, when the order of the general commanding the department of the east was made, even if he had been a regularly enlisted soldier of the army; or, in other words, until nearly two months after this court took jurisdiction. But I do not regard this as material, for the reason that the question is not one of courtesy, or of priority of jurisdiction, but whether the military tribunal has, or can have, any jurisdiction over the person of the petitioner. That this court has no jurisdiction of the military offense of desertion is a proposition which cannot be disputed, and it is equally clear that a general court-martial has no jurisdiction to try a citizen who has never belonged to or been connected with the ■ military service, for desertion or any other offense. Articles 5, 6, Amend. Const. U. S.; Wise v. Withers, 3 Cranch [7 U. S.] 331; Smith v. Shaw, 12 Johns. 257; Ex parte Henderson [Case No. 6,349], before Judge Ballard. And see Duffield v. Smith, 3 Serg. & R. 590; Wilson v. Mackenzie, 7 Hill, 95; Grant v. Gould, 2 H. Bl. 69; Brooks v. Adams, 11 Pick. 442; Warden v. Bailey, 4 Taunt. 67; Com. v. Blodgett, 12 Metc. (Mass.) 56. The question of the guilt or innocence of the petitioner is not, therefore, to be considered here, and the case must turn upon the question whether he was a soldier in the army (for there is no pretense that he was otherwise in or connected with it), and was therefore subject to the jurisdiction or control of the military authorities. If this question can be answered in the affirmative, he must be remanded, even if he be ready to produce the most conclusive proof of his innocence of the crime of desertion; if it must be answered in the negative, it is my imperative duty to discharge him.
The evidence bearing upon this question of fact has been deliberately considered, and I cannot doubt that it is my duty to discharge the prisoner; believing, as I do, that the testimony of Riley in regard to the petitioner’s enlistment in and connection with the army is entirely false. The evidence first offered upon the main question in this case — -that of the petitioner’s alleged enlistment in the army — was the affidavit of Riley, before alluded to. This evidence was objected to, but received subject to the objection. The affidavit was entirely extrajudicial, and no indictment for perjury could be sustained upon it; and therefore it
Henry Gardner, the person that Riley alleged went into the fort at Detroit, at the time he said he saw Reynolds there, was then called and testified that he knew Reynolds by sight, and went to the fort with Riley; that nothing happened there that lie saw; and that he did not then know Reynolds. Neither Capt. Hart, Surgeon Saunders, Goodrich, the recruiting agent, nor his partner, nor any other person, was called to identify the petitioner, or to show that he had ever enlisted, or had ever been in the military sendee as charged; and the respondent rested, reserving the right to call Capt. Hart if he arrived before the testimony was closed, and also reserving the right to call Patrick O’Melay, a convict in the penitentiary at Buffalo, for whom a writ of habeas corpus ad testificandum had been issued, on the application of the attorney of the United States. The petitioner then called Dr. Kit-tinger, who testified that he had been for three and a half years a surgeon in the army, and in the habit of examining recruits; that he had measured the iietitioner; that his height was five feet, seven inches, as they measured recruits for the army; that he had known Reynolds for ten years; and that his liair had always been black since he knew him, as it then was. This witness, and several other respectable witnesses, testified that the reputation of Riley was bad, and most of them added that they would not believe him under oath; while the character of Reynolds was proved to be good, — one witness only saying that he heard him and others named, in general terms, as bounty jumpers, and the others declaring it good without exception. It was also proved by one witness, who fixes the date by his entry in his account book, that Reynolds was at his shop, in Boekport, and then paid him for a pair of boots, on the 28th of March. 1805. Another witness proved that Reynolds and his wife were together at his store, and bought a stove of him, about the last of March, and he then stated other facts and circumstances and entries appearing on his books showing that it was almost certain that it was on the 27th of March, and that on the same 27⅛ of March he sold a stove to Peter Finnigan, or his wife, and charged it on his book, as then exhibited in court. It was also proved by Mrs. Finni-gan she had bought a stove, as stated, and that she on that day saw Reynolds and his wife at the store where the stove was bought; that she had talked with Mrs. Reynolds, and that Reynolds and his wife were there buying a stove. It was also proved by the brother-in-law of Reynolds, that he was present when the old stove of Reynolds was broken, and knew of the purchase of the new stove by Reynolds and wife; that he furnished a part of the price, and went with them' to one store to make the purchase, but left them before they went to the store where it was pm-chased; that he saw the new stove at Reynolds’ house the next day. and then saw and talked with Reynolds; that he knew this was the last of March, and thought it some eight or ten days after St. Patrick’s day, which was the 17th. This witness and his father also testified that during the months of March and April they were frequently at Reynolds’ house, saw him on Sunday at church, and did not know of his being absent from home. It was proved by another witness that Reynolds bought feed of him on the 17th or 18th of April, 18G5, at Boekport. The witness who had been' brought from Buffalo by habeas corpus was not called by the respondent, and no other witness was called who in any manner sustained or corroborated the testimony of Riley, or declared that his general character was good. In his affidavit before referred to, Riley had sworn that he “knew Reynolds enlisted in the regular army of the United States for the term of five years, and that, on the same or the next day after he enlisted, he saw him with the United States uniform on. and in charge of Sergt. Baldwin, who claimed to be recruiting for the regular army.” His testimony here shows no personal knowledge of such enlistment, but tends to prove it by circumstances, rather than by any statement of his enlistment in the presence or within the personal knowledge of Riley; and his testimony here in respect to his subsequently seeing Reynolds in uniform is not only silent in respect to his being in charge of Sergt. Baldwin, but is inconsistent with the idea of his being in Baldwin’s personal charge. In his affidavit he says he saw Riley in the fort the same day or the next day after he enlisted, and here he says it was three or four days after: but this last discrepancy would be of no importance if then-were not other strong grounds for discrediting his testimony.
It is perhaps impossible, now. to say what my conclusions would have been if the case stood upon this evidence alone, and the evidence afforded by the inspection of the peti
It is but just to myself to say, in conclusion, that I have not had access to some of the cases referred to in this opinion, and have been compelled to state them from digests or elementary works. I have, however, examined the reports of most of the eases, but, from the haste in which the examination has been made, it is not unlikely that some errors have been committed in stating the facts of the case, or the points decided. I am confident, however, that these errors are not such as should seriously affect my decision upon any of the questions discussed. The petitioner will be discharged.
