3 Grant 460 | Pa. | 1863
This is a writ of habeas corpus addressed to the sheriff of Centre County, in which he is commanded to bring before the President Judge of the Court of Common Pleas of said county, the body of James Shirk, with the cause of his detention. It was issued at the instance of Jacob Shirk, the father of the prisoner, who claims that the said James is a minor, and that he is therefore, by law, entitled to his labor and services. The sheriff makes return that he holds him by authority and under the direction of the provost marshal of this district, who also, upon leave granted, files his return, admitting that he holds the prisoner in his custody, and claims the right to detain him, because as Provost Marshal of the Eighteenth Congressional District of Pennsylvania (of which the county of Centre forms a part), duly appointed-and commissioned by the President of the United States, under the authority contained in the fifth section of the act of Congress of the 2d March, 1863, he arrested him as a deserter from the 45th Regiment of Pennsylvania Yolunteers, in accordance with the powers and directions of the seventh section of the same act; that he was by his direction placed in custody of the sheriff of Centre County for safe keeping until he can be removed to the nearest military commander or military post. He further returns, that it is his legal duty to deliver the said deserter to the nearest military commander or military post, and that he intends to perform such duty as soon as possible. That the production of the prisoner in court would be inconsistent with and in violation of his duty as provost marshal. That the said deserter is now held under authority of the United States, and that therefore, without intending any disrespect to the judge who issued the writ, he declines to produce the prisoner, or permit him to be produced, or to subject him to the process of the said court. The counsel for the relator alleging that the return is insufficient, moves for an attachment to compel the defendant to make a more full and
We are moreover clearly of opinion that the State courts have power to discharge, on habeas corpus, minors who are held to service under invalid contracts of enlistment. Com. v. Fox, supra; Carlton’s Case, 7 Cowen, 471. These and numerous other cases place this principle beyond doubt. 'If the case presented nothing more thaii an application for discharge from military service on the ground of minority, we could not hesitate to liberate the prisoner. But the defendant denies our jurisdiction over the case, and ■consequently our authority to interfere, on the ground that the prisoner is under arrest as a deserter, and liable to be punished by the sentence of a court martial. That being held in custody under authority of the United States, the State courts have no jurisdiction in the premises. The substituted return and the motion for attachment were made for the very purpose of raising the question of our jurisdiction over the case. That Oapt. W. W. White is the provost marshal of this district, and has the requisite authority under the act of Congress to arrest the prisoner for desertion, is admitted. Indeed in the present state of the record perhaps it should be assumed that the facts set forth in the return are true as therein stated; but whether this be so or not, they are admitted by counsel. Being true, do they constitute a valid return ? If they do, then there is an end of this case, for we are destitute of power to afford the redress sought for. But if they do not, then the defendant is in contempt and liable to attachment, by reason of his refusal to produce the body of the prisoner in obedience to the mandate of the writ. If the return alleged nothing more than that the prisoner was detained under and by Virtue of his enlistment, we should assuredly feel it to be our duty to enforce obedience by requiring the production of the prisoner to be dealt with as the law might direct. But the return avers that the prisoner has been- arrested and is detained for crime under the laws of the United States, and submits that he can only be discharged by a Federal court, or a judge thereof, and that therefore the defendant is not bound to regard the process of a State court, which would
Is this prisoner in custody under the authority of the United States within the meaning of this decision ? Desertion-is a crime. It is declared to be such by an act of Congress. It is triable and punishable by the military courts organized under and deriving their authority from the laws of the United States. The act of 2d March, 1863, under which the prisoner was apprehended, provides for the arrest of persons charged with this offence, designates the officer by whom the arrest is so to be made, and directs the manner in which they are to be dealt with after their arrest. He is arrested by virtue of process issued under the laws of the United States, ior an offence against their laws, within the exclusive jurisdiction of the courts of the United States. Is not this simple statement enough to prove that he is in custody under the authority of the United States ? We think so. Then according to Ableman v. Booth, we have no more authority to release the prisoner, than if he was under arrest for piracy, or aiding and abetting the escape of a fugitive slave. What then is our duty ? To assume jurisdiction, right or wrong ? The law as pronounced in that case declares that when we are fully apprised by the return of the authority~under which the arrest was made, we can proceed no further. Whatever our own views or feelings may be concerning the inconvenience or hardship of the case, we cannot disregard the law as settled by the highest court in the land. We must take-the law as we find it written, and obey it, otherwise law be- . comes no more law. '
The counsel for the prisoner argues that the facts, as they appear in the case, show the enlistment to be void by reason of non age, and hence it results that the prisoner cannot be guilty of desertion. That being under arrest for crime of which he cannot be guilty from the very nature of the case, he should be discharged without further proceedings. There is force in the proposition, and we would allow to it due weight, if we had jurisdiction to inquire into the validity of the enlistment or the propriety of the arrest, further than to ascertain by what authority it was made. Were this a case of desertion from the military force of this State, the argument might avail the prisoner here. It was recognized in Grace v. Wilber, 10 Johns, 453, and impliedly'in 1 Mason, 77. But it is to be observed that the first of these cases arose under the military laws of the State of New Yoi'k, and the other was tried in the Circuit Court of the United States. But would not the assumption of authority by us on such grounds, be fraught with the very mischief which the Supreme Court in Ableman v. Booth, endeavored to suppress; by laying down a plain rule, and marking distinctly the limits of the jurisdiction of the courts of the State and of the United States respectively, so as to prevent if possible the least clashing or conflict between two distinct sovereignties ? The rule is comprehensive, but in order to be efficacious it demands a liberal construction. To evade it by nice or technical distinctions would very seriously impair its efficacy. If we can go behind the return and inquire into the validity of the enlistment, we see no reason why we may not with the-same propriety, inquire into the
Note. — To the same effect is the decision of E. Darwin Smith, J., Sup. Court N. Y., in Jordan’s Case, 2 Law Reg. 749.
While Mr. Justice Woodward was holding the Court of Nisi Prius, bills were filed therein with a prayer for a preliminary injunction, the nature'-of which fully appears in the report of the cases. Upon hearing, the court, per C. J. Lowbie and J. J. Woodward and Thompson, held the law to be unconstitutional, and granted the preliminary injunctions as prayed for — J. J. Strong and Bead dissenting, and so the case is first reported.
The official term of Mr. Justice Lowbie expired on the first Monday of December, 1863, on whieh day Hon. Daniel Agnew, who had been elected at the previous October election, took his seat as a Justice of the Supreme Court for the period of fifteen years from that date.
On the 12th day of December, 1863, defendants’ counsel appeared in the Court of Nisi Prius, then held by Mr. Justice Strong, and moved the court to dissolve the injunctions previously decreed. A rule to show cause was granted, and the 30th day of December, 1863, fixed for the argument of the case; and the other justices of the court, at the request of Mr. Justice Strong, took part with him in the hearing and adjudication thereof. After arguments by both parties, the court, per Justices Strong, Bead, and Agnew, reversed the former decision, of the court, declared the law to be constitutional, and dissolved the preliminary injunctions previously granted — C. J. Woodward and J. Thompson dissenting, and hence the latter ruling is the authoritative construction of the act of Congress in this State.
For the information of those not familiar with our practice in such cases, I may mention that, after answers filed by defendants, the case may be re-argued at Nisi Prius,' and from there certified to the Supreme Court in banc, when, if the decision is adverse to the'constitutionality of the act of Congress, it may be removed by appeal to the Supreme Court of the United States as the court of last resort.