25 Wis. 390 | Wis. | 1870
Lead Opinion
This was a writ of habeas corpus to procure the discharge of a minor held in the custody of the recruiting officer of the United States as an enlisted soldier. On the hearing, the court commissioner made an order for his discharge, and the record is brought here by certiorari.
The only question pressed upon our consideration by the district attorney of the United States was, that of the jurisdiction of the state officer. With few exceptions, jurisdiction in this class of cases has been asserted and exerpised by state judicial officers, and sustained by the highest state courts from the beginning of the government down to the present day. I shall not. attempt any review of the numerous authorities on the subject. They are nearly all referred to in a note in 2 Abbott’s National Digest, 609.
Upon principle, it has always seemed to me that the jurisdiction was very clear, and that it resulted necessarily from the very nature and scope of the writ of habeas corpus, and the absence of any provision in the federal constitution in any way abridging the well-settled power of the state courts over the writ, or exempting federal officers from its operation. This great writ is the ?egis of personal liberty. It was established by the founders of constitutional freedom in England, and was
The high, searching, and imperative character of the writ was well settled and understood at the time of the adoption of the constitution of the United States. It was fully recognized by the provision that its privilege should be suspended only' when, in cases of rebellion or invasion, the public safety might require it. The full power and jurisdiction to issue it was, at that time, a part of the undoubted sovereignty of the states. And as the constitution did not, in any manner, abridge that power, nor exempt federal officers from its operation, by all the settled principles of constitutional construction the jurisdiction still remains.
Acting upon this theory, it has been asserted and exercised by most of the state tribunals, with little serious question, until the decision of the supreme court of the United States in the celebrated case of Ableman v. Booth, 21 How. (U. S.) 506. Although that case related to the discharge by a state court of a party in custody under the final sentence of the district court of the United States, since its decision some courts have applied its general reasoning to cases where the party was detained by the mere ministerial officers of the federal government under color of authority, as in the Spangler case, .11 Mich. 298. Others have asserted that, there was a distinction between cases of detention
But my own opinion is, that there is no solid distinction between the two classes, and that the doctrine of Ableman v. Booth, if true at all, is as applicable to one as to the other. Of course, in saying this, I include in those cases of custody under judicial sentence, only those where the court pronouncing the sentence had no jurisdiction; for in no other has any right to interfere ever been asserted. And, notwithstanding the many general remarks to the contrary in the opinion of the supreme court of the United States, this court, in the Booth case, never claimed any authority whatever' to “revise,” annul, or set aside the judgment or proceedings of the federal court or officers. It was never guilty of the absurdity of claiming “paramount jurisdiction in the state courts over the courts of the United States.” It was much easier to impute to it such a false position, and then answer that, than it would have been to have answered the reasoning upon which it really rested its decision. It proceeded upon a very familiar principle, and one uniformly acted on by all courts. That is, that whenever, in any court, in a case in which it has jurisdiction, the validity of the judgment of any other court is drawn collaterally in question, it must decide whether the court rendering it had jurisdiction. This familiar doctrine has never been more strongly asserted or acted on than by the supreme court of the United States. In Williamson v. Berry, 8 How. (U. S.) 540, that court said: “But it is an equally well-settled rule in jurisprudence, that the jurisdiction
The result at which the court arrived in that case, in exercising this undoubted right, was extraordinary indeed. It treated as a nullity, for want of jurisdiction, an order of the chancellor of New York, made under a law of that state relating to a matter wholly subject to state authority, and against the decision of the highest court of New York sustaining his jurisdiction. But it is obvious that no error in the result of the inquiry as to jurisdiction has any tendency to impeach the right to make that inquiry. That right exists from necessity, and without its daily exercise by all courts litigation could not be decided. It imports no assumption of authority, by the court making the decision, over the 'court the validity of whose judgment is passed upon. It imports no power to “revise, annul, or set aside its judgments.” The inquiry relates solely to the question of jurisdiction. If that existed, then the judgment, no matter how otherwise erroneous, is to have its full force and effect. The court where it is drawn collaterally in question, can go no further. But if that did not exist, then there is nothing to “revise, annul or set aside.” The judgment was then a nullity from the beginning. No doctrine in law is better settled than this. In truth, the decisions are uniform on the subject. In the case last cited, the opinion refers to the decisions of that court upon this' point, and quotes from its opinions in Elliott v. Peirsol, 1 Peters, 340, as follows: “Where a court has jurisdiction, it has a right to decide every question
That court suggests, in the Booth case, that this court could no more inquire into the legality of the imprisonment of a citizen of this state within its borders, under the order of a federal court, than it could send its writ into Michigan and inquire as to the legality of the imprisonment of a person there. It may be conceded that the state and federal judicial systems are distinct and separate, and independent of each other, as those of different states. Such a concession is clearly contrary to the existence of that appellate jurisdiction over the state courts which the federal court has asserted and exercised. But the repugnance between the doctrine of the Booth case now under consideration and the existence of that appellate jurisdiction will be hereafter noticed. I allude now to that illustration of the court simply to say, that, if the validity of a judgment of a court of Michigan should be drawn in question in any court of this state, in the exercise of its ordinary jurisdiction, the court here could decide, and must necessarily decide, whether the court of Michigan had jurisdiction to render it. The fact that the two jurisdictions are utterly foreign to each other does not prevent either from deciding to that extent upon the validity of the judgments and proceedings of the-other. Here, too, the federal authority is clear and emphatic. In the case of Rose v. Himely, 4 Cranch, 241, the court sustained the right of an American court to decide collaterally
Although all this doctrine is, as before remarked, entirely familiar, I have felt justified in thus quoting it from the supreme court of the United States, in order to show that when this court, in the Booth case, assumed the power, in the exercise of its ordinary iurisdictión to issue the writ of habeas corpus, to, j i collaterally upon the jurisdiction of the district coi. of the United States to pronounce the judgment unde., which Booth was imprisoned, it was not assuming any such unwarrantable or unheard of power as it has been charged with doing; and that, on the contrary, whatever might be said as to the correctness of its decision, still, in exercising the right to decide the question, it was pro
It is true, that, as states have no extra-territorial jurisdiction, and each can, therefore, by the writ of habeas corpus, inquire into the legality of imprisonment only within its own limits, such a proceeding would be less likely to draw in question the validity of any foreign judgment, than would litigation concerning rights of property. But this can make no possible difference in respect to the right of the court to decide the question, if it should arise. And although such a case may be very unlikely to arise, yet if any one should assert a right to imprison any person within this state under the judgment or order of a court of Michigan, or of any other state or country, it would scarcely be claimed that the entire separation of the two sovereignties, and the absence of any power to review the judgments of such other court, would prevent this court from inquiring upon habeas corpus into the legality of such imprisonment.
But under our peculiar system, where the state and federal governments, with their distinct judicial systems, exercise a divided sovereignty and jurisdiction over the same territory and people, such a question may well arise, as it did in the Booth, case. And for this court, in that case, in the exercise of its acknowledged,jurisdiction of the writ of habeas corpus, where the judgment of the district court was returned as the justification for Booth’s imprisonment, to pass upon the question whether that court had jurisdiction to pronounce such judgment, was no more a usurpation of authority,
In a suit in a state court, - involving a right of property, title is claimed through a sale under a judgment of a federal court. The state court, in deciding on the effect of the sale, must necessarily pass on the jurisdiction of the court by which the judgment was rendered. This court, in a civil suit, recently passed on the jurisdiction of a federal court to render a decree for the sale of a railroad on the foreclosure of a mortgage. There was no suggestion from any quarter, that, in doing so, it was exercising any unwarranted or unusual power, or assuming any authority to control, revise or annul the judgments of that court. Nor was it. As already said, it is a power constantly exercised by all courts. But it is precisely the same power that is exercised in a proceeding by habeas corpus, when the validity of a judgment under which the party is imprisoned is drawn in question. A judgment in a civil suit disposes of the title to property. A judgment in a criminal-suit
This court, in the Booth case, held the fugitive slave law, under which he was convicted, unconstitutional and void, and that therefore the jurisdiction of the district court over the subject-matter of the indictment failed. Whether it was right or wrong in this conclusion, or hr subsequently denying the appellate jurisdiction of the supreme court of the United States, is immaterial, so far as the question under discussion is concerned. Both of those questions are entirely distinct from that of the right of the court to pass collaterally on the jurisdiction of the federal court, in the first instance. The latter is all that is now under consideration. And in discussing that, I have the right to assume that this court may have been right in holding that the district court had no jurisdiction. The question is to be tested upon the assumption that federal courts may render judgments void for want of jurisdiction, and that federal officers may imprison persons without lawful authority. And the vital question is, whether, in such cases, the state tribunals are utterly powerless to relieve.
It is not my design to enter into any general vindication of the positions taken by this court in that case. I have considered it only so far as was material to the question now presented; and I have said what I have, concerning the nature and effect of a judgment void for want of jurisdiction, and the right of every court to treat it as a nullity, when drawn collaterally in question
Still, in the opinion of the supreme court of the United States, there was so much stress placed upon the fact that the imprisonment was under a judgment of the federal court, without seeming to take any notice of the real ground upon which this court proceeded, or of the broad distinction between the right to review or set aside a judgment, and the right to inquire collaterally into the single fact of jurisdiction,’ that there is room for refusing to apply' its general reasoning in that case to' a case like the present, where the detention is by a mere military officer, without the judgment of any court.
But upon principle there is no distinction, and the jurisdiction of the state court extends to both. If there were no appellate jurisdiction, the argument of convenience in favor of the position that all questions as to the legality of imprisonment, under alleged federal authority, should be decided exclusively by federal tribunals, would be very strong. It would doubtless then have been held, that the judicial power of the United ■States over all cases “ arising under the constitution and
That theory is, that the grant to the judicial power of the United States of cognizance of all cases at law or equity, arising under the constitution and laws of the United States, was not exclusive, and that neither this, nor any other, provision of the constitution deprived the state courts of the power to decide all such questions, whenever they should incidentally arise in the exercise of any jurisdiction which they then possessed. It will even be found, by referring to the proceedings of the conventions which framed and ratified the constitution, that the idea was very prevalent among its friends, that congress would leave the state courts to exercise all the subordinate federal jurisdiction, and not establish any inferior tribunals whatever. In the convention which framed it, after a resolution had been first adopted in such form as to make the establishment of inferior tribunals imperative upon congress, it was deliberately stricken out, for the avowed purpose of allowing the state tribunals to decide all such questions in the first instance. And the friends of the establishment of inferior tribunals afterward procured the adoption of the clause, “that the national legislature be empowered to institute inferior tribunals,” observing that there was a
The judiciary act provided, whenever the highest state court decided against “the validity of any treaty or statute of, or any authority exercised under, the United States,” for a review of such decision by the supreme court of the United States, upon writ of error; thus expressly assuming that the state courts may decide, in the first instance, upon the validity of any statute or treaty of, or authority claimed under, the United States.
In Martin v. Hunter's Lessee, 1 Wheat. 342, the supreme court, in sustaining this appellate jurisdiction, say : “It must, therefore, be conceded that the constitution not only contemplated, but meant to provide for, cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was foreseen that, in the exercise of their ordinary .jurisdiction, state courts would incidentally talce cognizance of cases arising under the constitution, the laws, and treaties of the United States. Yet to all these cases, the judicial power, by . the very terms of the constitution,-is to extend. It cannot extend by original jurisdiction, if that was already rightfully and exclusively attached in the state courts, which (as has been already shown) may occur; it must, therefore, extend by appellate jurisdiction, or not at all.”
It appearing, then, that the framers of the constitution, the conventions that ratified it, the congress and the supreme court of the United States, have all united in asserting the existence of this concurrent jurisdiction —• it having been exercised by the state courts, as well in habeas corpus as in other' judicial proceedings, from the
That which was really unusual and extraordinary was, not that. it assumed the power to decide upon the question, but that, in exercising that power, it decided against the validity of a law passed to sustain the institution of slavery. The public and judicial mind of the country was then in such a peculiar state upon that question, that it was doubtless this fact, together with the subsequent denial by this court of the appellate jurisdiction, which was, in truth, contrary to the entire current of authority, that so shocked the nerves of the venerable members of the supreme court, that they failed to perceive distinctly the real theory upon which this court had assumed the right to pass collaterally upon the validity of a judgment even of a federal court. Their opinion is certainly liable to the criticism, that, almost throughout, it confounds the distinction between an actual federal authority and a mere claim of it, and the distinction between the right of a court to pass collaterally on the question of jurisdiction in the proceedings of any other court, and its right to review and set •aside such proceedings where jurisdiction was conceded. It assumed that this court claimed the latter power, and the power to discharge any prisoner held under an actual federal authority. And it gravely quoted our statute, expressly requiring our courts to remand the petitioner for a habeas corpus, whenever it appeared that he was held by process from a federal court in a case in which such court “had exclusive jurisdiction,” as being repugnant to the theory on which this court had professed to proceed.
This mode of treating the subject certainly justified
How could these controversies .arise — how could the state and federal courts differ upon these questions — if the state courts were never to decide them at all ? And there is no reasoning upon which their jurisdiction in habeas corpus proceedings can be distinguished, in this respect, from any other part of their jurisdiction. If it be said that the power might embarrass the military operations of the government, it may be answered, in the first place, that the exigencies of military necessity may justify an officer in temporarily disregarding a writ of habeas corpus, whether issued by a state or federal court, as was fully recognized by all the judges of this court in the Kemp case, 16 Wis. 359.
In the next place it may be answered, that, with the power to correct their errors by appeal, there can be no more serious objection to the existence of this jurisdiction in the state courts than in the inferior federal courts. The appellate jurisdiction makes them, to that extent, parts of one judicial system. And the facilities for the protection of liberty cannot be too great. It may be further answered, that the jurisdiction has been exercised by the'state courts from the beginning of the government, without any serious detriment to the federal
There is nothing in the exercise of this jurisdiction by the state courts that at all impeaches the supremacy of the constitution and laws of the United States, or derogates ‘from the authority or dignity of federal officers. On the contrary, where two governments exercise a divided sovereignty over the same territory, there is a necessity, arising from the nature of the case, that the officers of either must, when called upon by a tribunal
The fair interpretation of this language would require a legal authority to be shown. For unless there is a legal authority, there is none at- all. There is surely a distinction between an “authority under the United States,” and a mere claim of such authority. And if the court, having this distinction in view, meant that the officer must obey the writ, and show a legal authority for the detention, then there is no ground for controversy. It is true, they afterward said, that if the party was wrongfully imprisoned, the federal tribunals alone could afford him redress. But even that remark could have full effect by confining its application to a case of imprisonment under a judgment of a court having jurisdiction, as the court held that to be. In such a case, although the imprisonment might - be wrongful, on account of errors in the judgment, yet the state courts, having no power,of review, could afford no relief.
To substitute for the inquiry, upon habeas corpus, whether there is a lawful authority for the imprisonment, the one whether there is a mere claim to it — whether the party holding the prisoner thinks he has a right — is incommensurate with the high character and function of the writ itself, and with a due respect to the sovereign power of the state to relieve against any imprisonment of its citizens within its borders which is without authority of law. And we have the concurrent testimony of those who framed and those who adopted it, of congress, of the state courts, and of the supreme court of the United States, prior, at least, to the Booth case, that the constitution contemplated that the state courts should exercise this power, and that any possible evils that might be apprehended from it were guarded against, not by withdrawing the power, but by providing for a review of their judgments by the federal court.
It appeared, from the evidence in this case, that the minor was under eighteen years of age. His enlistment was, therefore, unauthorized by any act of congress. It was suggested that the law makes the oath of the recruit
Concurrence Opinion
concurs in the above opinion.
Dissenting Opinion
dissents, holding that jurisdiction of the writ of habeas corpus, in cases of this nature, is vested exclusively in the courts of the United States, and that the state courts cannot entertain the same.
By the Court. — Order affirmed.