Opinion
01-01-1821
Ex Parte William Pool, Matthew Thompson, and Asa Wilson. [+]
The case is delivered by Bouldin, J. Semple, J., and R. E. Parker, J., dissented from a great part of the foregoing opinion, and Semple delivered the following opinion.
OPINION
This was an adjourned Case from the Superior Court of Law of Henrico. The Case is fully stated in the opinion of the Court, prepared and delivered by Bouldin, J.
On the 31st of October, 1821, William Pool, Matthew Thompson, and Asa Wilson, presented their petition to the Superior Court of Henrico county, setting forth that they were imprisoned by the Jailor of the said county, and that such their imprisonment was not authorised by Law; they therefore prayed a Writ of Habeas Corpus ad subjiciendum, which was awarded. By the return to that Writ, it appeared that the petitioners were sailors, who had regularly signed a contract within the intent aud meaning of the Act of Congress, passed the 20th of July, 1790, by which contract they had agreed to perform a voyage or voyages from Boston to sundry other ports, and then to return to Boston: that the voyage is not yet finished, nor the contract concerning it altered or otherwise dissolved; that the petitioners had deserted from the ship or vessel, and being brought before Joseph H. Mayo, a Justice of the Peace for the county of Henrico, before whom the facts aforesaid were proved, the said petitioners were committed to the jail of the county aforesaid, until thence discharged by due course of Law. In addition to the facts stated in the return, it was proved to the said Court, that the petitioners are citizens of the United States. Whereupon, with the consent of the petitioners, the questions arising upon their case were adjourned to the General Court for its opinion, whether the petitioners ought to be discharged from the custody of the said jailor.
Upon the case thus stated, the following questions have arisen, and been argued at the bar.
1. Had the Superior Court of Henrico jurisdiction to award and discharge under a Writ of Habeas Corpus, in cases where the petitioners are confined under colour of the authority of the United States?
2. Is that part of the Act of Congress, passed July 20th, 1790, which directs the Justice of the Peace to commit the petitioners under the circumstances before stated, made in pursuance of the Constitution of the United States?
3. What is the legal effect of the contract made by the petitioners with the Master or Commander of the vessel mentioned in the return; and how is the same affected by the commitment set forth in the Case?
Upon the first question, it is the unanimous opinion of this Court, that the Writ of Habeas Corpus may be properly issued by a State Judge, on the application of any party who, by proper affidavit, shews probable cause that he is unlawfully restrained of his liberty; that the question whether the Law authorises his confinement, is to be decided by the Laws of the State, considered as a member of the United States; that we are to consider all persons lawfully restrained of their liberty, who are confined in obedience to the Constitutional Laws of this State, or of the United States. In the practical application of these principles, the State Judges will not discharge a party, whose commitment is regularly made, with a view to a prosecution in the Courts of the United States, for an offence actually committed and cognizable therein; neither will the Judges of the State Courts as such admit the party to bail. Whether they will look beyond the warrant of commitment, when made by any other than a Judge of the Courts of the United States, and enquire into the fact, is matter of sound discretion to be regulated by the circumstances of each particular case. But it is the opinion of this Court, that the State Courts and Judges have concurrent jurisdiction with the Courts and Judges of the Federal Court in all cases of illegal confinement under colour of the authority of the United States, when that confinement is not the consequence of a suit or prosecution pending in the Courts of the United States, in which the allegation upon which the commitment is made will be tried. As therefore the commitment in question is connected with no such regular suit or prosecution, it is the opinion of this Court that the Superior Court of Henrico had jurisdiction of the questions arising in this Case.
In considering the second question proposed, the general power of the Congress of the United States to authorise the arrest and commitment of offenders against the Laws of the United States, by persons designated as holding offices under the State Governments, has been brought into review. It has been contended, that the Congress of the United States possesses no such Constitutional power, because the warrant to arrest, and the decision upon evidence that the accused ought, (by the Laws of the United States,) to be committed for trial in the Courts thereof, are Judicial acts; that those who perform them, exercise a portion of the Judicial power of the United States, which power can, Constitutionally, be exercised by such Courts alone, as have been, or may be established by the Constitution of the United States, and Laws made in pursuance thereof. And it is farther contended, that the commitment ordered in the present Case is embraced by the principles of this objection.
Upon the question, how far, and in what manner, a Justice of the Peace of the State of Virginia, may decide that a party brought before him shall be committed to jail for trial, and to order his commitment accordingly without exercising the Judicial functions, with which he is clothed by the State, there is a diversity of opinion among the Judges of this Court, and we have come to no definitive conclusion, whether the act of commitment, as required to be performed by the Act of Congress called the Judicial Act, be strictly Ministerial only, or partaking in part of the Judicial character, as those acts would be characterized by the Common Law, and Laws of Virginia. But a majority of the Court are of opinion, that whether such acts of commitment be strictly Ministerial or not, as they would be defined by the Common Law, they are not such acts as the Constitution of the United States intended to vest exclusively in the Courts therein provided for. While it is admitted that we may fairly refer to the Common Law, and to the Sages thereof for aid in determining what is the precise meaning of the first section of the third Article of the Constitution of the United States; it is perfectly manifest that a literal adherence to the Common Law definition of Juridical power, followed in every case, would impose a meaning on the Article in question, which never entered into the heads of the framers, or any one practically engaged in carrying the Constitution into effect. To state a single instance, the administration of an oath: If any one act as ancillary to the administration of justice has been uniformly called by the Common Law writers a Judicial Act, it is this one of administering an oath; and yet can any man in his senses believe that the framers of our Constitution intended that every Custom-House Officer, Commissioner of the Revenue or Excise, Commissioner to take depositions, Commissioner in bankruptcy, and to settle various other incidental and occasional matters, should hold his office during good behaviour, and at stated times receive for his services a compensation not to be diminished during his continuance in office? Most or all of these Officers and Special Commissioners have been authorised to administer oaths, and have done so, without an insinuation that they were exercising the Judicial powers of the Union. The remark made on this part of their duty, applies equally well to various other things of a seemingly Judicial nature, which they are in the constant habit of doing. The Commissioners to decide upon the claims on the Louisiana fund, did exercise, and the Commissioners now deciding on the claims on the Florida fund, must exercise quasi Judicial powers; a general view of which subjects is sufficient to show that the term Judicial power, as used in the Constitution of the United States, must be understood to mean what those terms imported at the time, not by resorting to any rigid, technical definition; but to their natural import, understood with reference to the subject matter in allusion to which they were used. Thus understanding the terms, we are of opinion, that the Constitution directs that all the regular and permanent duties, which properly belong to a Court in the ordinary and popular signification of that term, shall be performed by the Courts described in the Constitution; the Judges of which Courts shall hold their offices during good behavior, & c. There is, therefore, nothing in the Constitution which prevents a Ministerial Officer or other person, by Law directed, to do and perform any act, which may be necessary to bring an accused party before a Court possessing the Judicial power of determining on his guilt or innocence. We are therefore of opinion, that commitments made under the aforesaid Act of Congress, by the persons therein described, are lawful and right, provided they pursue the authority under which they act. But we are not to be understood as affirming that the Congress of the United States can give jurisdiction to, or require services of, any Officer of the State Governments as such. The direct contrary is the opinion of the Court; but what we have affirmed, and do affirm, is, that Congress may authorise any citizen of the United States, to perform any act which the Constitution of the United States does not require to be performed in a different manner.
We are then to enquire, what is the legal effect of the contract made by the petitioners with the Master or Commander of the vessel, and how that is affected by the commitment complained of? The first question here presenting itself, is, by what authority did the Congress of the United States define the obligation of the contract in question? The answer is, that by the third clause of the eighth section of the first Article of the Constitution of the United States, the Congress have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. And by the seventeenth clause of the same section, they have power to make the Laws necessary and proper for carrying the power first mentioned into effect. It is believed that the regulation of seamen to be employed in the merchant service may be assumed to be necessary without entering on the controverted ground to which it is supposed that these words necessary and proper in some cases lead. It is not perceived that this commerce, over which the Congress possess the entire control, could otherwise be carried on. The right, then, to give a rule on this subject being established, the question recurs, what is that rule as it relates to the Case before us? The answer is, that a seaman who regularly signs a contract, is, by the Law, bound to specific performance, and may not elect to pay damages for non-performance, as in ordinary personal covenants: nor is this effect of an engagement for personal services unknown to the Statute Laws of Virginia: the Law is understood to be the same in respect to apprentices, to servants under the Act of 1785, and to foreign seamen under the Act of 1805, as well as to soldiers belonging to the Army, and sailors belonging to the Navy. These are all mentioned together, because we know no difference between the effect of an engagement Constitutionally defined by Act of Congress, and one defined by the Laws of this State. In any of the Cases above supposed, as well as the very Case before the Court, the Master or Commander, as the case may be, may, by himself, or with others, his assistants, pursue and by force bring back his deserted apprentice, servant, sailor or soldier. The particular provisions of the Act of Congress which authorised the interference of the Justice of the Peace, may be said, in some sort, to be a restriction upon the rights of the captain, since, impliedly at least, it would seem to deny the right of using the house of correction, or common jail, for the purpose of safe-keeping his deserted sailor, without having the case examined by the person authorised by the Act of Congress; but, perhaps, the better opinion is, that the Act of Congress designed to give the jailor who might act as an assistant to the captain of the vessel, a protection against the charge for false imprisonment, should the sailor in truth and in fact not be under the obligation charged upon him. The imprisonment directed by the Act of Congress, is for no determinate period, is not inflicted as a punishment, and is not directed with a view to any trial, for any offence whatsoever. We cannot, therefore, regard the execution of this part of the Act of Congress as the prosecution of a public offence. And while the powers exercised by the Magistrates, are, at first view, of a seeming Judicial character, and would perhaps be so defined by the Common Law, we are justified in saying that the case did not present such a Judicial question as was necessary or proper to be carried into Court by formal process; using the term Court, in the sense we have before stated it to have been used in the Constitution of the United States. If the nature of the duty required to be performed, rendered it doubtful in the minds of some, whether it were necessary to carry it into a regular Court, or to be tried by a jury, the Legislature of the State of Virginia, in the Act of 1805, answers the question almost if not entirely in the words of the Act of Congress, and directs the same proceedings: it is true, that the Act of 1805 provides for the case of foreign seamen only; this is explained by the fact that the language of the Act of Congress does not apply to contracts made without the jurisdiction of the United States, as to which the lex loci would give the rule. But both Laws ameliorate the condition of the sailor; first, by requiring the contract to be reduced to writing; and secondly, by requiring the consent of the Justice of the Peace before he shall be thus restrained of his liberty. We understand the nature of a sailor's engagement to bind him to specific performance, by the Commercial Laws of the civilized world. By the Laws of Wisbuy, a sailor who received part of his wages and deserted, was to be hanged; and when a sailor engaged himself to two captains, the first had a right to take him from the second, and compel him to go the voyage. These Laws, with those of Oleron, now form the basis of the Maritime Codes of Europe, and in some degree are supposed to be adopted by the Constitution of the United States, as they were certainly to be resorted to by our Courts of Admiralty previous to the adoption of the Federal Government; and it has been again and again determined by the Courts of Admiralty in this country, that the Act of Congress alters the general Maritime Law only, so far as it gives a new rule, and the rights as well as the obligations of the mariner are clearly subjects regulated by these Maritime Laws, and acted on every day in the Courts of Admiralty. The act, therefore, which has been done in this case, might well be done by individuals appointed by Law, or persons designated by general description. If, therefore, Joseph H. Mayo, (being one of the persons designated,) has pursued his authority, his act must be effectual, to every legal intent and purpose. The commitment is made in precise conformity with the Act of Congress, and the petitioners have not suggested that the facts on which it was grounded do not exist; they must, therefore, be remanded to the jail of the county of Henrico, there to remain until the vessel to which they belong, and named in the proceedings, shall be ready to proceed on her voyage, or the captain shall demand their discharge. Which is ordered to be certified to the Superior Court of Law for the county of Henrico.
1 Rev. Code of 1819, ch. 110.
2 Rev. Code of 1819, ch. 218.
DISSENT
SEMPLE, J., and R. E. PARKER, J., dissented from a great part of the foregoing opinion, and SEMPLE delivered the following opinion.
Upon the case, as stated in the Court's opinion, three questions arose, and were argued with great ability by the Counsel for the prisoners, and for the captain or master.
1. Had the Superior Court of Law for the county of Henrico jurisdiction to award a Writ of Habeas Corpus, and to discharge the prisoners when confined under colour of the authority of the United States?
2. Is the 7th section of the Act of Congress, passed on the 20th June, 1790, entitled, " An Act for the government and regulation of Seamen in the Merchant service," so far as it authorises any Justice of the Peace within the United States, to issue his warrant to apprehend a deserter and commit him until the ship or vessel shall be ready to proceed on her voyage, or the master shall require his discharge, and then to be delivered to the master, made in pursuance of the Constitution of the United States?
3. What is the legal effect of the contract made by the petitioners with the master, mentioned in the " returns," and how is the same affected by the commitment set forth in this case?
Upon the first point, I am of opinion, that a Judge of the General Court, a Judge of either of the Superior Courts of Chancery, a Superior Court of Law, or of Chancery, or the General Court, may award a Writ of Habeas Corpus, and discharge a prisoner confined under colour of the authority of the United States; but, if the confinement be the consequence of a suit or prosecution pending in the Courts of the United States, or a State Court, a Judge ought not to interfere, unless the authority under which the United States' Court is proceeding, be clearly without foundation, or the confinement can result in nothing but the oppression of the prisoner. In this case, I am of opinion, that the Superior Court of Henrico had jurisdiction.
In considering the second question, the power of Congress to authorise the arrest and commitment of offenders against the Laws of the United States, by persons designated as Judicial officers of the States, (Justices of the Peace,) has been brought into view, argued at great length at the Bar, and maturely considered by the Court. Having the misfortune to differ from the Court on this subject, I must state at large the grounds of my opinion. The 33d section of the Judicial Act of the United States, is in these words:
" And be it further enacted, That for any crime or offence against the United States, the offender may by any Justice or Judge of the United States, or by any Justice of the Peace, or other Magistrate, of any of the United States, where he may be found, agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such Court of the United States as by this Act has cognizance of the offence: and copies of the process shall be returned as speedily as may be into the Clerk's office of such Court, together with the recognizances of the witnesses for their appearance to testify in the case; which recognizances the Magistrate before whom the examination shall be, may require on pain of imprisonment. And upon all arrests in Criminal cases, bail shall be admitted, except where the punishment may be death; in which cases, it shall not be admitted but by the Supreme, or a Circuit Court, or by a Justice of the Supreme Court, or a Judge of a District Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence and the usages of Law." Laws U. States, vol. 1, p. 72.
By this section, I contend, that Congress have by Law appointed all the Justices of the Peace, in the United States, officers, and bestowed upon them Judicial authority. By the Constitution, the nomination and appointment of all officers of the United States, is to be made by the President with the advice of the Senate, (whose appointments are not otherwise provided for, and which shall be established by Law,) with the exception of such as Congress may by Law authorise the President alone, the Courts of Law, or the Heads of Departments, to make. Congress can create, but cannot fill an office. The Constitution not only vests the appointment elsewhere, but by giving to Congress Legislative powers only, the power of making appointments is excluded. Constitution of United States, art. 1, sec. 1; art. 2, sec. 1, 2. It has been contended by an enlightened Judge, that because the President and Senate have given their assent to the Law; and therefore, to the appointment of the officers designated, (even if they be considered in that light,) the joining the vote of the House of Representatives will not render the appointment unconstitutional. This argument seems to rest on the assumption, that the mode of appointing an officer under the Constitution, is matter of mere form, and not of substance. But the Government of the United States, is in the strictest sense, a limited Government. It is not only limited, because, 1. It possesses only the powers granted. 2. That rights are reserved, which are not to disparage others not reserved. 3. The exercise of some powers is expressly forbidden. 4. All powers not granted, are reserved to the States, or to the people; but because the several departments are limited by the particular distribution of powers among them, Constitution U. States, art. 1, sec. 1; art. 2, sec. 1, 2; art. 3, sec. 1, 2, & c. Amend. Const. U.S. art. 9. 10, & c. the mode or manner, then, in which a power is exercised, and by which of the departments, is matter of substance and vital importance. The several departments cannot, by their consent, be blended. Otherwise, by the consent of the several departments, the division and distribution of powers deemed essential by the parties to the Compact for the preservation of Liberty, might be wholly subverted. The Executive might be blended with the Legislature, and might gain, perhaps, an ascendancy fatal to Liberty; and in cases of appointment, (if the President did not thus control the Legislature,) they might be made in opposition to his will, two-thirds of both Houses concurring. Const. U.S. art. 1, sec. 7, ch. 2. We return to the enquiry, are the persons designated by the Act, within the contemplation of the 1st and 2d sections, art. 2, Const. U. States? or, in other words, when the Constitution speaks in that article of officers, according to its true construction, does it embrace persons performing such duties, business, or labour, as Justices are called upon to perform by this Act? To arrive at the true meaning and construction of this article, it is fair to recur to the period of the adoption of the Constitution to the United States, and enquire what was then intended by an office or officer. Whether, at that time, such duties as are assigned to Justices of the Peace by this article, were performed, not only in England, (from whence we for the most part borrow our Laws,) but in all the Confederated States, by officers, and by officers alone? The Common Law of England had been, (but with different modifications,) adopted in all the States, and was then the Law of each State; and although the nature of our Institutions forbid, in some cases, a resort to the Common Law, as " a safe exposition of American terms," in this case, there is nothing, which I can perceive in any of our Institutions, which would render the Common Law an unsafe exposition of the terms " office," or " officer." An office is said to be that function by which a man hath some employment in the affairs of another. Jac. L. Dic. " Office; " it implies a duty, and the charge of such duty. Carth. 478. It signifies a place of trust. 5 Mod. 431. There is a difference between an office and employment. 2 Sid. 142. Offices are public or private, and herein it is said, that every man is a public officer who hath any duty concerning the public, and he is not the less a public officer where his authority is confined to narrow limits; for, it is the duty of the office, and the nature of that duty, which makes him a public officer; not the extent of his authority or the frequency of its exercise. Carth. 474. Some offices are Judicial, some are Ministerial, some relating to the administration of Justice, or to the actual exercise thereof, and must be exercised by persons of fit capacity, and in person and not by deputy. Bac. Abridg. " Office," a. p. 725. Lord Coke informs us, that Judicial offices cannot be granted to persons inexpert, and in his 9 Rep. 97, and 11 Rep. 4, we find it held, that offices which concern or touch the administration of Justice, cannot be granted for a term of years, or in reversion. All these descriptions apply to Justices of the Peace exercising or discharging the functions or duties required of them by this Act. They have " an employment in the affairs of the United States:" " a duty is implied, as well as the discharge of that duty." " They have duties to perform which (deeply) concern the public," in a most important respect, " touching or concerning the administration of Justice," and " they are not the less public officers, if their authority is confined to narrow limits," to crimes and offences committed against the United States; for, it is their duty, and the nature of their duty, and not the extent or frequency of the exercise of authority which makes them officers. " They exercise functions or duties relating to the administration of Justice, and the actual exercise thereof." They are authorised not merely to grant a warrant, but to examine into and decide on the probable guilt or innocence of the accused; they may discharge, bail, or acquit; they may take the recognizances of witnesses, under pain of imprisonment, and are bound to certify their proceedings to the Court having jurisdiction over the crime.
If, then, the Common Law may be relied on as a safe expositor of the terms office and officers, Justices of the Peace are constituted by this Act officers, and they have offices concerning the administration of Justice. In England, such duties as are required of Justices by this Act, have constantly since the Government assumed its present form, been exercised by officers, and officers alone: In every State in the Union, so far as I have been able to obtain information, I think it may be affirmed that the examination, the discharging, bailing, or committing a person accused of crime, has been confided to officers, and to officers only. If, then, the duties, and the nature of the duties to be performed under this Act, by the Justices, makes them officers, according to the principles of the Common Law, and at the adoption of the Constitution of the United States, such duties were in all the States performed by officers alone, and in the understanding of the people of the respective States, could not be properly exercised by any other than officers, is not the conclusion irresistible that the parties to the Federal Compact intended to comprehend, and did comprehend, under the term officers, in the section under consideration, persons discharging such functions, duties, or labours, as are required of Justices of the Peace, by the aforesaid 33d section of the Judicial Act? Moreover, one of the greatest defects in the old Articles of Confederation, was, that the powers of the Government could only be carried into effect by the aid of the States. The present Constitution provides for the execution of almost every power granted, without the aid of the States. Now, as the administration of Criminal justice, in many respects, has been confided to the Federal Government, and as these powers cannot be carried into effect without entrusting to a competent number of persons the power of arresting and examining such as are accused of crime, it seems to me that Congress are bound to provide for their appointment, and that it would be a subversion of all known principles and practice in the United States, to entrust such important duties to mere agents, persons who are not officers. The 4th Art. Amend. Const. U.S. prohibits the issuing a warrant but on probable cause, supported by oath or affirmation, and the 7th Amendment forbids excessive bail to be taken. Are not these restraints intended to operate on " officers?" Can they be considered as addressed to mere individuals, persons negotiating occasional business, forming no part of the Government of the United States, and not even a part of its machinery? Surely these are restraints on the Government, and are intended to act directly and especially on officers whose duty it should be to act in the inceptive stages of Criminal prosecutions; on exactly that description of officers to whom the Act has confided the powers of arrest, examination and commitment. The powers given by this Act to Justices of the Peace, are too necessary to the safety and well-being of the United States, too strong and tremendous in their application, to be vested in mere negociators or agents, to be exercised or not, at the will of individuals. They are of a character which require that they should be exercised only by officers responsible to the authority from which they derive their power. The Act itself seems to admit that these principles are correct. The Judges of the United States, and Justices of the Peace within the United States, are to exercise these important functions. It seems to me, that Congress did not intend to describe a class of persons by the description of Justices of the Peace, but that they intended to designate Judicial officers, who should exercise the powers, and of this I am the better satisfied, when I reflect that they are associated with Judicial officers of the United States, and not with any description of mere individuals, or private persons. Congress passed a Law, by which they delegated the power of trying persons charged with certain crimes, to the State Courts. They imposed by Law penalties, and authorized their recovery in State Courts. It is manifest they were of opinion, that they could delegate the execution of the Criminal Laws of the United States to the State Courts. Are we then to be surprised at their delegating the execution of the Criminal Laws of the United States, in the inceptive stages of the prosecution, to State officers as officers? In Feely's Case, and in the Case of Jackson v. Rose, this Court denied the right of Congress to delegate the execution of the Laws of the United States to State Courts, and these decisions, according to my understanding, equally forbid the delegation of the execution of the Criminal Laws of the United States, in the inceptive stages of prosecution, to State officers, and that, therefore, such officers cannot act under the grant. The Tribunals or officers of the State, cannot, at the pleasure of Congress, according to the principles of these decisions, be made the instruments of executing the Criminal Laws of the United States. If the powers delegated to Justices are to be exercised, I would ask whether they are to act in the name of the United States, or of the State in which they are Justices? It seems to me that it has been decided in the Cases referred to, that the Courts cannot act in the name of the United States, and that it follows as a consequence that a Justice of the Peace cannot. And I take it to be clear, that a Justice of the Peace cannot use the name of the Commonwealth for arresting or committing any one who is not an offender against a Law of the State. In what a singular situation would a man in the Commission of the Peace be placed, if he acted under the Act of Congress, and should not be regarded as an officer of the United States? His functions would certainly be Judicial, and purely so, as far as they consisted of the examination of the accused, and the decision on the question of his probable guilt or innocence; and yet, for mere error in judgment, all bad motive apart, he would be liable to the action of the accused. Can it be true that these important powers can be confided to unapt and incapable persons, irresponsible to those by whom they are employed, not punishable for corrupt conduct, but liable to the action of the accused, for mere error of judgment? Could it be expected that the duties assigned by this Act would, under such circumstances, be performed in the manner required by their importance?
1 Virginia Cases, 321.
Ante 34.
Arguments against the construction contended for, drawn from inconvenience, seem to me not to be entitled to much consideration; since they are used in favor of a construction that appears to me, if adopted, would violate great principles. Besides, if officers were directly appointed, according to the provisions of the Constitution, for the discharge of the duties assigned to State Justices, it does not appear to me that they need be numerous, or expensive to the United States. The duties are now performed without compensation, and I do not see any reason for supposing that the United States would incur any considerable expense in providing for the discharge of these duties by officers who might be well entrusted with such other Judicial duties as Congress have been disposed to refer to State Magistrates. If their appointment should involve more of expense than is contemplated, still it ought to be encountered for the preservation of great principles, for the security and happiness of the people of the United States. The parties to the Federal Compact, it is supposed, might, by State regulations, obviate the occasion for appointing such officers by the Government of the United States; but if they will not do so, no alternative is left the Federal Government. That Government, I admit, should avoid all unnecessary expense, and the creation of useless officers to eat up the substance of the people; but the administration of Justice is of such vital importance to a people, and the expense thereof so trifling, compared with the other expenditures of Government, even in times of peace and quiet, that I should deem the article of expense as matter of but little moment, compared with the good to result. In providing by Law for the prompt, regular and able administration of justice, (when the Laws of meum et tuum have been once fixed,) a Government would deserve more from the people, and contribute more to their prosperity and happiness, than by all other Laws they could enact. The people of the United States could never complain of expense incurred in producing such desirable results.
Being therefore of opinion that although Congress can create, they cannot by Law fill an office, but that it must be filled in the mode and manner prescribed by the Constitution: that Congress cannot command or authorise Justices of the Peace of a State to use the authority of the United States, or of a state, (without the express authority of the State to do so,) in carrying into effect any penal Law, either in the inceptive or final stages of a prosecution, I am constrained to come to the conclusion that the 33d section of the Judicial Act, so far as it proposes to authorise State officers by general designation, to grant warrants of arrest against persons accused of crimes or offences against the Laws of the United States, to examine, bail, or commit the accused, compel the attendance of witnesses, recognize them to appear to give evidence under pain of imprisonment, & c. whether these duties be considered as Judicial or as Ministerial, or partaking of both, as not made in pursuance of the Constitution of the United States, and that, therefore, the State officers designated cannot act under that section of the " Act." This preliminary enquiry will aid in the farther investigation of the second question, and also of the third question, both of which I proceed to consider together at the same time.
On the 20th July, 1790, Congress passed the Act for the government and regulation of seamen engaged in the merchants' service; the seventh section of which is in these words:
" And be it enacted, That if any seaman or mariner who shall have signed a contract to perform a voyage, shall at any port or place desert, or shall absent himself from such ship or vessel, without leave of the master, or officer commanding in the absence of the master, it shall be lawful for any Justice of the Peace within the United States, (upon the complaint of the master,) to issue his warrant to apprehend such deserter, and bring him before such Justice; and if it shall then appear by due proof, that he has signed a contract, within the intent and meaning of this Act, and that the voyage agreed for is not finished, altered, or the contract otherwise dissolved, and that such seaman or mariner has deserted the ship or vessel, or absented himself without leave, the said Justice shall commit him to the house of correction, or common jail of the city, town, or place, there to remain until the said ship or vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, and then to be delivered to the said master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman or mariner." 1 vol. L. U.S. p. 141.
From whence does Congress derive the power of governing and regulating seamen? By the 8th sec. of the 1st art. Const. U.S. Congress have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. This Act is not, however, a regulation of commerce; it is a regulation of seamen. The power of governing and regulating seamen in the merchants' service, carrying on foreign commerce, or commerce among the States, is an incident to the power granted as aforesaid, to regulate foreign commerce, and among the several States. This incidental power is one without which the principal power to which it is incident, could not be carried into effect. And Congress, by the last clause of the same 8th section of the 1st article, have power to pass all Laws necessary and proper to carry into effect all the powers granted by the Constitution; and the incidental powers are as much granted by the Constitution, as the express powers. The incident passes by the grant, as well as the principal. Is the said 7th section of the above recited Act, so far as it authorises any Justice of the Peace within the United States to issue his warrant to apprehend a deserter, and commit him until the ship or vessel shall be ready to proceed on her voyage, or the master shall require his discharge, and then to be delivered to the master, necessary and proper for carrying into effect the power of governing and regulating seamen engaged in the merchants' service? I readily admit that Congress, in the regulation of seamen, might well declare how contracts should be entered into by seamen, and how they should be performed; that they might require and enforce the specific execution of the contract on the part of the seaman. In enforcing, however, these contracts specifically, (when legal proceedings are resorted to,) Congress can only authoritatively use, or command the tribunals or officers of the U. States. If tribunals or officers of another sovereignty be resorted to, on principles of comity, to enforce the contract specifically, they could only act in the manner and by the course of proceeding sanctioned by the sovereignty to which they belonged. If, then, a State officer be resorted to, he could only act according to the rules prescribed by the State Government, and in obedience to the Law of the State. To grant that Congress can command the Judicial tribunals of the States, or the Judicial officers of the States, in the execution of the Laws of the United States, according to the mode prescribed by Congress, would be to surrender up the Sovereignty of the States. This never could be yielded by a Sovereign State. That Congress should exercise such a power, cannot be necessary or proper in carrying into effect the power of regulating seamen; nor can it be consistent with the distribution of powers among the respective governments of our complicated system. If the Justices, in the execution of this act, are to be considered as mere individuals, and not as officers, then the enquiry occurs, is it proper to entrust Judicial powers, or quasi Judicial powers of so high a character, to mere individuals? Is it necessary or proper to delegate such powers to any others than officers responsible for their conduct? A captain, or master of a ship or vessel, alleges that a seaman has entered into a contract according to the forms prescribed by the Act of Congress, that he has deserted, that the voyage has not been finished or altered, and that the contract has not been altered or otherwise dissolved; and he requires of a Justice of the Peace a warrant to apprehend the seaman. When the seaman is apprehended and brought before the Justice, he sets in judgment and decides all the questions arising in the case. Has the seaman signed such a contract as is contemplated by the Act of Congress? Has the voyage been finished? Has it been altered? Or has the contract been in any way dissolved? These several points, involving both Law and fact, are to be decided by the Justice. He has not even the aid of a jury to determine the facts. These duties are purely Judicial. Here we have a lis pendens before a Judge. We have actor, reus, et Judex. We have a cause depending which deeply involves the liberty of the citizen. Every one will at once perceive that the investigation may produce questions of the greatest nicety and difficulty, both in point of Law and fact. I cannot persuade myself, that all this can be either necessary or proper for the government or regulation of seamen. It seems to me to break down great principles, and to prostrate every thing like propriety, to commit to irresponsible agents such a trust. That the master may be authorised to pursue and apprehend his deserted seaman, I do not at all question. That he might be aided or assisted by those he might employ, I would readly admit; but it seems to me that it is not competent for Congress to establish by Law a Tribunal, put into office State officers, and direct the mode of proceeding by the Tribunal so established, or to delegate these high Judicial powers to individuals, to be exercised when a master shall institute a suit or ask a warrant against a seaman, to enforce by Law the specific execution of his contract. This may not be done not only for the reasons aforesaid, but because Congress cannot by Law appoint to office; and all the objections before stated against the appointment of Justices of the Peace for the discharge of Judicial functions under the Judicial Act, apply to the appointment of Justices to the discharge of the Judicial duties assigned to them by the Act now under consideration. By the 33d section of the Judicial Act, important Judicial duties in the administration of Criminal justice, are delegated to Justices of the Peace. By this Act, important Judicial duties in the administration of Civil justice, (the execution of contracts,) are attempted to be delegated to the same State officers. In both instances, many of the duties are purely Judicial, of a very high character, and equally involve the rights and personal liberty of the citizen. These duties, in neither case, in my judgment, according to the theory and principles of our Governments, or according to the provisions of our fundamental Laws, can be exercised other than by responsible officers, who are to act by virtue of powers granted them by the Sovereignty to which they owe their existence. In both instances Congress have evinced the same conviction of the necessity of confiding these powers to officers. They seem to me to have erred in supposing that they could command the State Judicial officers; that they could authoritatively substitute State officers for Federal officers. Congress may have intended, by calling in a Justice of the Peace, to restrict in some sort the powers of the master over his seaman, and at the same time to secure the performance of the voyage. But the method adopted seems to be neither necessary nor proper. I do not regard the Act as penal, or the confinement as a punishment. I regard the confinement as the means adopted for securing the specific execution of the contract; and if Congress had assigned the duties to responsible officers, constitutionally appointed, there could have been no objection, as far as I can perceive, to the manner of enforcing the contract. It is extremely probable that Congress intended to protect the Jailor to whose custody a seaman might be committed, against the action of the seaman, if, indeed, he did not come within the purview of the Statute; and it is equally probable that Congress likewise intended or expected that the Justice of the Peace would be also protected against the action of the seaman, if he decided the case erroneously, but not corruptly. Yet, if the Justice of the Peace be not a Judge, if he be not an officer clothed with Judicial authority, exercising Judicial functions and responsible to Government, it cannot, I presume, be going too far to say, that neither the Justice nor the Jailor would be protected against the action of the seaman, if his case did not, in truth, come within the Act of Congress. There seems to me to exist a very slight analogy, if any, between the cases under consideration and the cases of the Commissioners acting or deciding on the Louisiana or the Florida fund. These Commissioners were arbitrators, chosen according to the agreement of the concerned. Not so are the Justices in either of the cases under consideration. In these the Government exerts itself directly and forcibly on the citizen by officers of another Sovereignty, over whom it undertakes to act authoritatively in cases involving the dearest rights and liberties of the citizen, and against his will. As to cases in which officers of one Sovereignty perform occasional matters of business for another Sovereignty, they act on principles of comity, no superiority being assumed by the latter over the former, no command being directed to them, and therefore distinguishable (if for no other reason) from the cases under consideration; and it might perhaps be said, that no instance could be given of similar powers being exercised on principles of comity, by one nation for another. Hence, I am compelled to come to the conclusion, that the said 7th section of the Act of Congress, passed on the 20th June, 1790, entitled, " An Act for the government and regulation of Seamen," so far as it authorizes any Justice of the Peace within the United States to issue his warrant to apprehend a deserter and commit him, until the ship or vessel shall be ready to proceed on her voyage, or the master shall require his discharge, and then to be delivered to the master, is not made in pursuance of the Constitution of the United States. As, then, the duties which have been performed in this case, could not constitutionally have been directed to be performed by individuals appointed by Law, or by persons designated by general description for that purpose, as Justices of the Peace, the acts of Joseph H. Mayo, a Justice of the Peace, one of the officers designated by general description for that purpose, were without legal authority, and not effectual for any legal purpose. But, as by the petition and " return," and the facts conceded by Counsel, the prisoners appear to me to be under legal obligations to perform the voyage agreeably to their contract, and by the Act of Congress may be constrained to do so by the master; and as they are only held in restraint by the Jailor, (who may be well regarded as the servant or agent of the master,) till the vessel to which they belong, named in the proceedings, shall be ready to proceed on her voyage, or the master shall require their discharge, there does not appear to me to be any reason for discharging them. The most that could be done would be to turn them over into the immediate custody of the master or captain, who might confine them wheresoever he might think fit, without, however, practising any unnecessary severity or force, till the vessel proceeded on her voyage, or the voyage should be changed or altered. It would be time enough to interfere, when they complained of any unnecessary restraint or force; but as at present no such complaint is made, I am of opinion, that they are not entitled to their discharge.
HABEAS CORPUS.
I. Definition.
II. Office and Application in General.
III. Grounds of Relief and Scope of Remedy.
1. Custody under Warrants, Commitments or Judgments.
2. Custody of Infants.
3. Questions Affecting Slaves.
4. Army Enlistments.
IV. Procedure.
1. Jurisdiction.
2. The Petition.
3. The Return.
4. Evidence.
5. Judgment.
6. Appeal and Error.
1. DEFINITION.
A writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and cause of his caption and detention, to do, submit to, and to receive whatsoever the court or judge awarding the writ shall consider in that behalf. Bouvier's Law Dict.
II. OFFICE AND APPLICATION IN GENERAL.
Statement of General Principle.--The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, but the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law--in other words the object is to grant release from illegal restraint. Lacey v. Palmer, 93 Va. 159, 24 S.E. 930; Armstrong v. Stone, 9 Gratt. 102; Rust v. Vanvacter, 9 W.Va. 600.
Applies to Detention by Private and Public Authority.--The writ of habeas corpus is applicable to two distinct classes of cases. First, where the restraint or detention is by private authority; and second, where the detention is by commitment under legal process. Exparte Mooney, 26 W.Va. 36, 53 Am. Rep. 59.
Detention without Jurisdiction.--Where the proceedings under which the complainant is detained in custody are void, as where the court is without jurisdiction, because the detention is under an unconstitutional law, the writ may be invoked. Ex parte Rollins, 80 Va. 314.
Proper Remedy to Ascertain Legal Custody of Infant.--The writ of habeas corpus is a proper remedy for the ascertainment of information of the legal and proper custody of an infant, and when so used is of an equitable nature. Green v. Campbell, 35 W.Va. 698, 14 S.E. 212, 29 Am. St. Rep. 843. See " Custody of Infants," infra; also, monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
Cannot Determine Sufficiency of Evidence.--Where a justice of the peace has jurisdiction of a penal action, and the case has been conducted in conformity with the established rules of procedure in such cases, the sufficiency of the evidence upon which the judgment is based cannot be inquired into on habeas corpus. Ex parte Marx, 86 Va. 40, 9 S.E. 475. See " Evidence," infra.
No Remedy for Irregularities in Process or Proceedings.--Mere irregularities in the process or errors in the proceedings of courts of competent jurisdiction are not remedied by habeas corpus, but by appeal or writ of error. But if the process or proceedings be void the rule is otherwise. Ex parte Evans, 42 W.Va. 242, 24 S.E. 888; Ex parte Rollins, 80 Va. 314; Ex parte Marx, 86 Va. 40, 9 S.E. 475. It brings up the prisoner with the cause of his commitment, and the court can inquire into the sufficiency of the cause, but if he be detained by virtue of a judgment of a court of competent jurisdiction, that judgment is in itself sufficient cause, and the sufficiency of the evidence on which the judgment is founded cannot be inquired into. Ex parte Marx, 86 Va. 40, 9 S.E. 475.
Removal of Cause--Delivery of Writ.--A writ of habeas corpus cum causa, for the removal of a cause from an inferior to a superior court, must be shown to the court in which the cause is pending, or delivered to the sheriff in whose custody the defendant is, otherwise there can be no removal. Fleming v. Bradley, 1 Call 203.
Removal of Cause--State of Proceedings in Superior Court. --In Halley v. Baird, 1 H. & M. 25, it was questioned whether the proceedings in a cause removed by habeas corpus from an inferior to a superior court ought to be commenced de novo or carried on from the state at which they stood in the inferior court. This question was decided by an act passed at the next session of the legislature (Rev. Code, vol. 2, ch. 108, p. 135), which provided that it should stand in the same situation as it was in the inferior court, and that it should be proceeded with to final judgment, without new pleadings, unless such pleadings would have been proper, if the cause had remained in the inferior court.
III. GROUNDS OF RELIEF AND SCOPE OF REMEDY.
1. CUSTODY UNDER WARRANTS, COMMITMENTS OR JUDGMENTS.
Escape Warrant--Recitals.--Where a habeas corpus was sued out by a person who had been arrested under an escape warrant, on the ground that the warrant did not show on its face that the person who issued it was a justice of the peace, it was held that although this should regularly appear, yet if it was proved that he was a justice, the person ought not to be discharged. Jones v. Timberlake, 6 Rand. 678.
Escape Warrant--Issued by Justice--Construction of Statute.--The statute, 1 Rev. Code, ch. 136, § 1, providing for the retaking of persons who had escaped out of prison, enacts that if any person committed to any county or corporation prison or jail shall escape, a justice of the peace may issue an escape warrant. This statute does not authorize such warrant in the case of a person who has escaped from the custody of a sheriff before he has been committed to prison; and if the warrant under which a person is detained, shows on its face that the escape was not from a prison, but from the custody of the sheriff, he may be discharged by writ of habeas corpus. M'Clintic v. Lockridge, 11 Leigh 253.
Effect of Informality in Warrant When Offence Committed in Jurisdiction.--A prisoner should not be discharged on habeas corpus, if the court is satisfied on the hearing that the offence charged was committed by him within the jurisdiction, although the process on which he was arrested and committed may have been informal, and not in compliance with law. State v. Plants, 25 W.Va. 119, 52 Am. Rep. 211.
Erroneous Judgment of Court of Competent Jurisdiction.--When a party is imprisoned under a judgment or order of a court having jurisdiction to make such order, he cannot be discharged on habeas corpus, however erroneous such judgment or order may be; but it is otherwise if the court had no jurisdiction to make the order or judgment. Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59; Ex parte Evans, 42 W.Va. 242, 24 S.E. 888.
Judgment by Court with No Jurisdiction.--A person confined in the penitentiary under the judgment of a court of oyer and terminer, for an offence which such court had no jurisdiction to try, may be discharged by the general court upon a writ of habeas corpus. In re Cropper, 2 Rob. 842.
Judgment Part Valid and Part Invalid.--Where a court has jurisdiction of the subject-matter and of the person, and it pronounces a severable judgment or sentence, one part of which is authorized by law and another distinct part which is not so authorized, the prisoner will not be discharged on habeas corpus, when it does not appear that he has undergone the full punishment imposed by the valid portion of the sentence. Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59.
Statute Authorizing Commitment Must Be Strictly Pursued.--Where a commitment by a justice is not strictly pursued in accordance with the statute from which the sole authority of the justice in such case proceeds, the prisoner is entitled to be relieved from his illegal confinement by means of habeas corpus. Ex parte Marx, 86 Va. 40, 9 S.E. 475. See Jones v. Com., 20 Gratt. 848.
Detention before Indictment on Order Not Specific.--On being tried for the felony of stealing a slave, the prisoner was acquitted, but the circuit court entered an order, reciting that it appeared that he was guilty of a misdemeanor and remanded him to jail until the next term, when an indictment would be preferred against him. The court of appeals on habeas corpus discharged the prisoner from the custody of the sheriff as it was illegal and improper, because the order of commitment did not sufficiently specify the offence. Young's Case, 1 Rob. 744.
Effect of Innocence on Legal Detention.--A person held under proper process to answer for an offence created by a statute enacted within the constitutional powers of the legislature cannot be discharged upon a writ of habeas corpus, however clear his innocence may be, but must abide his trial in the mode prescribed by law. Lacey v. Palmer, 93 Va. 159, 24 S.E. 930.
Judgment Reversed While Prisoner in Penitentiary.--When a prisoner has been taken to the penitentiary, and while there confined the judgment against him is reversed, it is proper for the appellate court to bring him before them by habeas corpus, and discharge him. Leftwich v. Com., 20 Gratt. 716.
Prisoner Sentenced for Less Term Than Law Authorizes.--Where a jury sentenced a prisoner to the penitentiary for three years, when the shortest term was five years, on a writ of error judgment will be reversed and the prisoner will be remanded for another trial; being in the penitentiary he will be brought before the appellate court by habeas corpus, and committed to the sheriff of the county to which he should be sent. Jones v. Com., 20 Gratt. 848: Stuart v. Com., 28 Gratt. 950; Richards v. Com., 81 Va. 110; Ex parte Marx, 86 Va. 40, 9 S.E. 475; Leftwich v. Com., 20 Gratt. 716; Barker v. Com., 2 Va. Cas. 122.
Judgment for Additional Term of Confinement.--Sections 4179 to 4182 of the Va. Code of 1887, provide that if a person sentenced to the penitentiary and received therein shall have been before sentenced to like punishment, and the record of his conviction does not show that he was sentenced under § § 3905 and 3906, requiring sentence for an increased term in such case, the superintendent of the penitentiary shall file an information in the circuit court of Richmond to require the convict to say whether he is the person formerly convicted and sentenced; and if he remain silent, or deny such identity, a jury of bystanders shall be summoned to try the issue thus raised, and upon a verdict against him the prisoner shall be sentenced to such further confinement as is prescribed by chapter 190. Such provisions are constitutional, as the prisoner is not in the position of one charged with crime in the first instance, with all the presumptions of law in favor of his innocence, and a writ of habeas corpus asking for his discharge from such additional punishment will be denied. King v. Lynn, 90 Va. 345, 18 S.E. 439.
Act Changing County Seat Void--When Court Legally Held.--Where an act of the legislature changing the location of the county seat of a county is void because it is repugnant to the constitution, courts held at the former county seat are legally held, and a prisoner detained there under an indictment, is not entitled to his discharge on habeas corpus, as his detention is lawful. Cutlip v. Sheriff of Calhoun Co., 3 W.Va. 588.
Commitment by One Court and Habeas Corpus Granted by Another.--Where a county court delivers persons convicted by it of murder to the jailor for safe keeping until brought back for execution, the fact that a court having jurisdiction has granted the prisoner a writ of habeas corpus will justify the keeper in refusing to deliver them upon the order of the court commiting them. Cardoza v. Epps, 2 Va. Dec. 133 (1895).
2. CUSTODY OF INFANTS.
Who Entitled to Custody--Rule Stated.--The father, and when he is dead the mother, is the natural guardian of his infant children, and as a general rule will be given the custody of them in preference to the claims of all others. But where he has voluntarily relinquished the care of them to another, or where they have been taken from him, and he brings habeas corpus for their recovery, it by no means follows that in every case the courts will direct that they be delivered up to him, as he is not entitled as of right to them. If they are improperly and illegally restrained the courts are obliged to set them free, but whether they shall give the custody of them to any particular person rests in the exercise of a sound discretion, to be governed by what will best promote the happiness and welfare of the child. In reaching their decision the interest of the child is the polar star for the guidance of the courts. Armstrong v. Stone, 9 Gratt. 102; Coffee v. Black, 82 Va. 567; Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115; Rust v. Vanvacter, 9 W.Va. 600; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, 17 S.E. 308; State v. Reuff, 29 W.Va. 751, 2 S.E. 801; Mathews v. Wade, 2 W.Va. 464; Slater v. Slater, 90 Va. 845, 20 S.E. 780; Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685. As was said by Keith, P., in the case last cited: " The question is not which of the two claimants can surround the infant with greater luxury, or which of the two will be able to give or bequeath him the greater amount of money or property, but with which of them is he likely to be reared and trained so as to make him the better man and the better citizen."
In a proceeding of this kind, the evidence established the facts that the petitioner, who was the father, had transferred his motherless child when she was a month old, to the respondents, the child's aunts. The latter suitably cared for her until she reached the age of twelve years. During this time the father contributed very little to her support, and only saw her two or three times during the twelve years. It also appeared that the child preferred to stay with her aunts. It was held that the petitioner was not entitled to the custody of the child. Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115.
In a somewhat similar case a father had transferred his three year old daughter on the death of her mother to her aunt, who was rearing her properly and happily. When the child reached the age of seven habeas corpus proceedings were instituted by the father to regain possession of her. The evidence showed that the aunt was willing and able to rear the child, and that the child did not wish to leave her aunt. The father had other small children, and his home was managed and ruled by his sister-in-law, to whom he was not married. He also was ruined financially, was of dissipated habits, and often away from home. It was further established by the evidence that the other children were put out to be taken care of, and when at home were neglected and severely whipped. It appearing from this evidence that the best interests of the child would not be promoted by returning her to the custody of her father, the petition was dismissed. Coffee v. Black, 82 Va. 567.
In Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, the mother by her will, which was written by the father, expressed the desire that on her death her infant child should be permitted to remain with her sisters, and to be reared and trained by them " as their own." This agreement was carried out by the father, but in a few years the relations between the parties became strained, and the father sued out a writ of habeas corpus asking that his child be restored to him. The evidence established that the child's interests would be best promoted where it was, and the writ was dismissed. See generally, monographic notes on " Guardian and Ward" appended to Barnum v. Frost, 17 Gratt. 398, and on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
Insanity of Mother--Proper Consideration for Court.--Upon the hearing of a writ of habeas corpus sued out by a mother after the death of her husband to obtain the custody of her minor children, where it appears from the return of the writ, or otherwise, that the mother shortly before had been insane, it is proper for the court or judge before whom the writ is pending to cause such further inquiry to be made as will enable the court to determine whether she is fit to be entrusted with the custody of her children. State v. Reuff, 29 W.Va. 751, 2 S.E. 801.
Court Has to Decide Who Entitled to Custody.--Where the person sought to be discharged is of years of discretion and sui juris, the court does nothing further than discharge him in a proper case. But if he is not of this age, then it devolves upon the court or judge to see that he is placed in proper custody, and for this to be done it has to be decided who is entitled to the custody. Rust v. Vanvacter, 9 W.Va. 600; Armstrong v. Stone, 9 Gratt. 102; Mathews v. Wade, 2 W.Va. 464.
Taken from Grandfather. --In Rust v. Vanvacter, 9 W.Va. 600, the court compelled a grandfather to deliver up a child of nine years of age into the hands of its father.
Appointment of Guardian.--The regularity or the propriety of the appointment of a guardian cannot be determined upon a writ of habeas corpus. Mathews v. Wade, 2 W.Va. 464.
3. QUESTIONS AFFECTING SLAVES.
Taken after Emancipation for Debt of Owner.--The writ of habeas corpus is the proper remedy to secure the release of a slave, who was taken after he had been emancipated by execution to satisfy the debt of a former owner, contracted before he executed a bill of sale for the slave to the person by whom emancipation was made. Ruddle v. Ben, 10 Leigh 467.
Taken after Emancipation for Debt of Owner. --Determination of Liability.--A slave having been emancipated and duly registered as a freeman and not being claimed as a slave, but as subject to a lien for a debt, a proceeding by habeas corpus to be relieved from the custody of the officer is a proper mode to try the question of his liability to be subjected to the payment of the debt. Shue v. Turk, 15 Gratt. 256.
Sentenced as Free Man by Court with Jurisdiction.--A court with jurisdiction of the case having tried a negro as a free man and sentenced him to the penitentiary, the persons claiming the negro as a slave are not entitled to relief by habeas corpus, since the prisoner is detained under lawful authority. Ex parte Ball, 2 Gratt. 588.
Validity of Bill of Sale.--Upon a writ of habeas corpus to procure the release of a slave, on which the former owner had executed a bill of sale, the question as to the validity of the bill may be determined. Ruddle v. Ben, 10 Leigh 467.
Transportation Order by Majority of Court Contrary to Statute.--In Elvira's Case, 16 Gratt. 561, it was held, construing sec. 7, ch. 200, and sec. 5, ch. 212, of the Code of 1849, that where a slave was tried for a felony punishable with death, and the court acting within its discretion directed it to be sold and transported beyond the United States, instead of inflicting the death penalty, that it was necessary for the court to be unanimous in their opinion. In this case there was one dissenting judge and the slave was relieved by the writ of habeas corpus.
Suit for Freedom--When No Necessity for.--When the return of the writ of habeas corpus, where the applicant is a person of color and claimed as a slave, makes it appear that there is no real litigation as to the right to freedom, the court may discharge the applicant on the writ without putting him to his suit for freedom. De Lacy v. Antoine, 7 Leigh 438.
Suit for Freedom--When No Necessity for. --Indefinite Affidavit.--In a petition proceeding by citizens of a foreign state seeking relief from illegal confinement, a claim of the vice consul of that state that the applicants are slaves, supported by his own affidavit that he believes them to be so, but with an admission that he does not know their owners, does not afford sufficient grounds for putting the appellants to their suit, nor ought the court to postpone its judgment in the habeas corpus for a great length of time, to enable the vice consul to communicate with a distant island for the purpose of ascertaining who the owners are, and establishing their claim. De Lacy v. Antoine, 7 Leigh 438.
Suit for Freedom--When Allowed--Statute.--If upon the return of the writ, it appears that the applicant is a person of color, and there seems to be a real ground for litigation between the applicant and the person claiming him as a slave, the court will not determine the question of freedom upon the habeas corpus, but the applicant will be admitted to bring his suit for freedom, as the statute prescribes, in forma pauperis. De Lacy v. Antoine, 7 Leigh 438.
4. ARMY ENLISTMENTS.
Voluntary Enlistment by Alien.--Where an alien voluntarily enlists in the army of the United States, he has no right to claim exemption from the consequences of his own voluntary engagement, and his petition for a writ of habeas corpus, seeking that he be discharged from service on account of his being an alien, will be denied. United States v. Cottingham, 1 Rob. 615.
Custody of Conscript Officer--Exemptions--Relief.--A person who is in custody of an enrolling officer under the conscript law, and claims to be exempt from military services, either by reason of having a substitute, or upon any of the grounds of exemption as set forth in the exemption law, is not entitled to the benefit of the writ of habeas corpus until he has failed to obtain the relief to which he is entitled by pursuing the regulations on the subject prescribed by act of congress or the war department. If he fails to obtain his discharge in that way within a reasonable time then he may complain of being unlawfully detained, and have the benefit of the writ of habeas corpus. Mann v. Parke, 16 Gratt. 443.
IV. PROCEDURE.
1. JURISDICTION.
Of Court of Appeals--How Conferred.--The constitution does not of itself confer original jurisdiction on the court of appeals in cases of habeas corpus. It only invests that court with the capacity to receive such jurisdiction in those cases which the legislature shall see fit to confer on it. Prison Assoc. v. Ashby, 93 Va. 667, 25 S.E. 893; Barnett v. Meredith, 10 Gratt. 650; Page v. Clopton, 30 Gratt. 415; Gresham v. Ewell, 84 Va. 784, 6 S.E. 134; Price v. Smith, 93 Va. 14, 24 S.E. 474; Cook v. Daugherty, 99 Va. 590, 39 S.E. 223.
Of Court of Appeals--To Grant Writ of Error on Application for Writ.--The court of appeals has no jurisdiction to grant a writ of error to a judgment on an application for a writ of habeas corpus. Bell v. Com., 7 Gratt. 201.
In Vacation.--Under sec. 1, ch. 60, Acts 1872-3, a writ of habeas corpus ad subjiciendum, to obtain possession of an infant by its father, is proper. The writ may be ordered, issued and the return made thereon, and the case decided by a judge of the circuit court in vacation. Rust v. Vanvacter, 9 W.Va. 600.
When Prison Association of Virginia a Party.--Jurisdiction of all habeas corpus cases to test the right of the Prison Association of Virginia to keep custody of minors is given exclusively to the circuit court of Richmond. There is no provision in the constitution prohibiting the legislature from conferring such jurisdiction on that court, and the wisdom and propriety of a statute have no weight in determining whether it is in conflict with the state or federal constitutions. Prison Assoc. v. Ashby, 93 Va. 667, 25 S.E. 893.
To Determine Proper Custodian of Minor.--The jurisdiction exists in courts to determine upon the hearing of a writ of habeas corpus who has the legal right to the custody of a minor. Mathews v. Wade, 2 W.Va. 464.
Territorial--Crime on Ohio River.--Where a person was arrested and confined for a criminal offence committed on a vessel on the Ohio river, within lowwater mark, opposite the territory of West Virginia, although moored to the bank within the boundaries of the state of Ohio, it was held on a writ of habeas corpus that the state of West Virginia had jurisdiction and the prisoner was not discharged. State v. Plants, 25 W.Va. 119, 52 Am. Rep. 211.
Not Power of Revision but to Arrest Void Judgment.--Jurisdiction in proceedings on habeas corpus in cases where the detention is by commitment under legal process, is not strictly speaking a power of revision, but a power to arrest a void order or judgment. It acts directly on the effect of the order or judgment, but only collaterally on the order or judgment itself. It cannot therefore be made a substitute for a writ of error or certiorari. Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59.
Of State Courts When Confinement under United States Authority.--A state judge may award a habeas corpus, where a party shows by affidavit probable cause that he is unlawfully restrained of his liberty, although he be confined under color of the authority of the United States, and the question whether the law authorizes his confinement, is to be decided by the laws of the state, as a member of the United States; and all persons are to be considered as lawfully restrained, who are confined under the constitutional laws of the state or of the United States. Ex parte Pool, 2 Va. Cas. 276.
Of State Courts When Confinement under United States Authority. --Concurrent--In cases of illegal confinement under color of the authority of the United States, the state courts have concurrent jurisdiction with the federal courts, except where the confinement is in consequence of a suit, or prosecution pending in the courts of the United States. Ex parte Pool, 2 Va. Cas. 276.
Cannot Be Made Means of Acquiring Jurisdiction for Another Suit.--Where a slave sued out a habeas corpus in a county adjoining that in which the person claiming him resided, and on a summons being served upon the claimant he brought the slave into the said county, this cannot be held a detention within the meaning of the statute, so as to give jurisdiction to the courts of the county into which the slave is brought, particularly if the writ was resorted to merely to evade the statute. Ratcliff v. Polly, 12 Gratt. 528.
Cannot Be Made Means of Acquiring Jurisdiction for Another Suit--How Question Raised--Rule.--When habeas corpus is resorted to as a contrivance to give a court jurisdiction of the person, which it otherwise would not have had, the court should dismiss the suit on the defendant's motion. The proper method to raise the question of jurisdiction is by rule on the plaintiff to show cause why it should not be dismissed. Ratcliff v. Polly, 12 Gratt. 528.
2. THE PETITION.
In Whose Name--Infant by Next Friend--Mother Married Second Time.--The petition for a writ of habeas corpus to obtain possession of a child, may be in the name of the infant by his next friend, or in the name of the person claiming possession. And when the mother is claiming possession and has been married a second time, the petition may be in the names of herself and her husband. Armstrong v. Stone, 9 Gratt. 102.
In Whose Name--May Be in Name of Father.--The petition for a writ of habeas corpus to secure the possession of a child may be in the name of the father. Rust v. Vanvacter, 9 W.Va. 600.
Insufficiency--Motion to Quash.--It is not regular or proper to demur to the petition, but ordinarily the child should be produced, the return made, and then move to quash as issued on insufficient cause. Rust v. Vanvacter, 9 W.Va. 600.
Allegations--When Infant Eight Years Old.--It is not necessary to allege in express terms in the petition to recover an infant of eight or nine years old that she is detained against her will. It is sufficient if it shows that the petitioner has a legal right to the custody of the infant and the detention of the child from the father in violation of that right. Rust v. Vanvacter, 9 W.Va. 600.
Must Be Accompanied by Sufficient Evidence--Affidavit of Petitioner.--Where the petition in a habeas corpus case is unaccompanied by any other evidence except the affidavit of the petitioner, and the record of the circuit court by which the petitioner is committed, shows that there is probable cause to believe that he is detained regularly by lawful authority, and the petition does not allege or show good cause, or any cause, why he should be admitted to bail or be discharged from custody, the writ should be refused. Quarrier's Case, 5 W.Va. 48.
3. THE RETURN.
Not Conclusive--The court is not precluded by the return of habeas corpus in West Virginia from inquiring into the truth of all matters therein alleged. State v. Reuff, 29 W.Va. 751, 2 S.E. 801, 6 Am. St. Rep. 676.
Not Conclusive--Statutory Provision in West Virginia.--It was held in Rust v. Vanvacter, 9 W.Va. 600, that, whatever the rule of the common law was on the subject, in West Virginia the return of the person to whom the writ was directed was not conclusive, as the statute says that the court or judge shall determine the case on the return and any other evidence. Hence the return may be contradicted by other evidence.
Certainty Required.--It was said by Woods, J., in State v. Reuff, 29 W.Va. 751, 2 S.E. 801, " While less certainty is required in returns to writs of habeas corpus than in pleadings in civil actions, yet 'certainty to a certain intent in general' is required in the return, and the facts necessary to warrant the detention of the party must in substance be alleged, so as to apprise the opposite party of what is intended to be proved, in order to give him an opportunity to answer or traverse it, and these facts ought not to appear by way of recitals only."
Insufficiency--How Objected to.--Upon proceedings in habeas corpus, if the petitioner deems the return of the writ insufficient, he should not demur to it, but move the court to discharge him. Ex parte Mooney, 26 W.Va. 36, 53 Am. Rep. 59.
Amendment.--Leave should be granted to amend a return of a writ of habeas corpus, where it appears that further inquiry ought to be made respecting an important fact not distinctly alleged in the return, which fact if ascertained to exist would show that the petitioner was not a proper person to have control of the child, whose custody he seeks to obtain. State v. Reuff, 29 W.Va. 751, 2 S.E. 801, 6 Am. St. Rep. 676.
4. EVIDENCE.
Petition Not Conclusive of Illegality of Detention.--The petition is not always looked to exclusively to ascertain if the infant is detained without lawful authority, for by express provision of law it may be shown by affidavit or other evidence. Rust v. Vanvacter, 9 W.Va. 600.
Reasonable Delay of Final Hearing to Allow Party to Obtain Evidence.--If upon the hearing of a writ of habeas corpus it is apparent that proof of an existing fact essential to a correct determination of the controversy has been omitted, and that such proof can be readily obtained, and the condition of the proceedings is such that this may be done without injury to the opposite party, the court should delay the final hearing for a reasonable time, in order that proof of such material fact may be supplied. State v. Reuff, 29 W.Va. 751, 2 S.E. 801.
Affidavit of Colored Petitioner--Cannot Testify against White Person.--A person in custody may show in a habeas corpus proceeding by his own affidavit that he has probable cause to believe that his detention is without lawful authority, and although the return of the writ shows the applicant to be a person of color and claimed as a slave, still the affidavit does not cease to be proper. In such case the person of color cannot give evidence against a white person, but his affidavit may be received as a foundation for further proceedings. De Lacy v. Antoine, 7 Leigh 438.
Statutory Provision as to Affidavit Refers to Illegality of Detention--Sufficiency.--The provision of sec. 3035 of the Code of Va., that affidavits taken on reasonable notice may be read in habeas corpus proceedings, in the discretion of the judge or court, refers only to such affidavits as are introduced to show illegality, and not mere irregularity in the detention of the prisoner, and it does not authorize a review of the sufficiency of the evidence. Ex parte Marx, 86 Va. 40, 9 S.E. 475.
5. JUDGMENT.
Denying Right of Father to Infant--Effect.--An order in habeas corpus by a father to recover the custody of his infant child, refusing him such custody, is not an unalterable final judgment, but will last only until the child may have the right to nominate its own guardian, or until a material change of circumstances requires a change of custody. Green v. Campbell, 35 W.Va. 698, 14 S.E. 212.
Effect of Ohio Judgment in Right of Slave to Freedom.--The right of a slave to freedom in Virginia is not established by a discharge of the slave by a judgment in habeas corpus in Ohio, where he had removed with the consent of his master, for a mere transitory purpose, and with the intention to return. Lewis v. Fullerton, 1 Rand. 15.
6. APPEAL AND ERROR.
Refusal to Require Petitioner to Give Bond with Security.--The refusal of the judge to require of the petitioner bond with security for costs, was held in Rust v. Vanvacter, 9 W.Va. 600, not error for which the court of appeals would reverse the order or judgment of the lower court. Rust v. Vanvacter, 9 W.Va. 600.
Right of Appeal by Attorney General--Construction of Statute.--The right of appeal given to the attorney general by the 11th section of the Act of January 10th 1815, concerning writs of habeas corpus, was held in Attorney General v. Fenton, 5 Munf. 292, to be confined to the case of persons held in service of the state or United States, by which the court understood military service, and did not apply to a case when a militiaman was fined for failing to appear at a rendezvous and march.
No Supersedeas.--On a writ of error to review a judgment in habeas corpus proceedings remanding a prisoner, the court cannot grant a supersedeas. Ex parte Mooney, 26 W.Va. 32.
Admission to Bail on Appeal.--In Ex parte Eastham, 43 W.Va. 637, 27 S.E. 896, the question was raised as to whether the supreme court of appeals could admit a prisoner to bail upon habeas corpus, but the question was not finally settled, as the judges were equally divided in their opinion. [+] For monographic note on Habeas Corpus, see end of case.