Smith v. Shaw | Cases | Westlaw

*257 Where a person not subject to the jurisdiction of a court-martial, is arrested, and detained for trial, for an offence not within their jurisdiction, not only the persons making the arrest are trespassers, but also a commanding officer who ratifies and affirms their acts, or himself undertakes to exercise restraint over the plaintiff, is subject to an action.

Whether a mere refusal to discharge the plaintiff would render the commanding officer a trespasser? Quære. But it seems that a provost marshal would not be liable for detaining the plaintiff.^a

A citize?? of the United States, not in military service, is not amenable to a court-martial.

Where the subject matter of a suit is not within the jurisdiction of a Court, all the proceedings are absolutely void, and the officer, as well as the party, is a trespasser.

But where the subject matter is within their jurisdiction, and the want of jurisdiction is to the person or place, the officer is excused, unless the want of jurisdiction appears on the process.^b

IN ERROR, from the Court of Common Pleas of Jefferson county.

Shaw brought an action of assault and battery, and false inprisonment, against Smith, in the Court below. The defendant pleaded not guilty, with notice of special justification, to be given in evidence on the trial. At the trial, in July, 1814, it was proved, on the part of the plaintiff, that, in January, 1814, Shaw was arrested, at Adams, distant about fifteen miles from Sacket's Harbor, by two persons, whose names were Hopkins and Findley, and carried by them to Sacket's Harbor. The witness applied to the defendant to get Shaw released, and the defendant said he had a man in the provost guard, by the name of Shaw, who had been brought there by Hopkins; that he had been confined four or five days, on charges of treason, and of being a spy; and that he, the defendant, should not release Shaw, until he had seen Lieutenant Hopkins, who was expected *258 to return to Sacket's Harbor in eight or ten days; that he, the defendant, was not acquainted with the civil law, but knew the martial law, and should be governed by it; that he should regret to keep an innocent man in confinement, and if he were satisfied of the innocence of Shaw, he would release him. Shaw was brought before the defendant, by his order, and stated, that a person of the name of Burr, at Sacket's Harbor, knew him to be a citizen of the U. States. Smith made some excuse for not then sending for Burr, but said he would send for him the next day, and remanded Shaw to the guard house. The witness understood from Smith, that he was the commanding officer at Sacket's Harbor. The witness, about ten days after, saw Shaw at large, in Adams.

Another witness stated, that when Smith was applied to, as above stated, in behalf of Shaw, he appeared to have forgotten him, and observed, that he had been very much occupied; that he regretted to detain an innocent man; but that he must investigate the case, before he could, with propriety, discharge him. It was proved that Shaw (a native of Scotland) was a naturalized citizen of the United States, and resided in the county of St. Lawrence at the time of his arrest.

The defendant below offered to prove, in justification, that on the 6th of January, 1814, the plaintiff below was committed by Hopkins and Findley, then officers in the army of the United States, to the officer commanding the provost guard at Sacket's Harbor, and by their order was taken and kept by that officer, in his custody; that Hopkins and Findley, at the time of the commitment of the plaintiff, delivered to the officer of the guard a writing signed by them, stating the charges against the plaintiff to be, “exciting insurrection and mutiny among the good citizens of the United States, at the town of Adams, in the state of New-York, on the 6th of January, 1814;” “violating his parole as a prisoner of the enemy, and engaging in an illicit trade, to furnish the enemy with necessaries from the United States;” “being an enemy's spy in time of war, between Great Britain and the United States;” under which last charge, it was specified, “making improper and suspicious inquiries of and concerning the military post at Sacket's Harbor, in the vicinity of the same; and for lurking in and about said post, without any apparent cause or business.” The defendant *259 further offered to prove, that the plaintiff was so committed, and so received and detained by the officer of the provost guard; that it was the same detention complained of; and that the defendant could not legally prevent the said arrest and detention of the plaintiff.

The Court below refused to admit the evidence thus offered by the defendant, in justification; but decided, that it might be received in mitigation of damages; and with that direction the cause was left to the jury, who found a verdict for the plaintiff for 779 dollars and 25 cents. The counsel for the defendant tendered a bill of exceptions to the opinion of the Court below, on which the writ of error was brought to this Court.

By the articles of war, (80, 81, 82.) an officer commanding a guard, or provost marshal, is bound to receive and keep any prisoner committed to his charge by an officer of the army, provided such officer delivers an account in writing, signed by him, of the crime with which the prisoner is charged; and such prisoner cannot be released “without proper authority.”

The “proper authority,” mentioned in the articles of war, is not the will and pleasure of the commanding officer, but the decision of a regular court-martial. It may be said, perhaps, that the defendant did not proceed according to the articles of war, but discharged the plaintiff, afterwards, on being convinced of his innocence, without any court-martial having been held. *260 If the defendant did so, he acted without proper authority, and at his peril.

But we contend, that the detention of the plaintiff was not unlawful. The plaintiff was charged with being a spy, and with a breach of his parole: these were offences within the jurisdiction of a court-martial. It is enough to justify the officer, that the subject matter is within the jurisdiction of the Court. If the Court has no jurisdiction as to the person of the party arrested, he must come in and plead it.^d1 We do not pretend that citizens are subject to courts-martial for crimes; but if the subject matter is within the jurisdiction of a court-martial, the party must plead that he is a citizen, and not a soldier. In Grant v. Gould,^‡ it was admitted, that a court-martial had a right to try and decide the question, whether soldier or not. Such a power is inseparable from its jurisdiction. It must, however, take care to decide the question on proper and sufficient evidence.

But we contend that the plaintiff, as to his person, was subject to a court-martial: he was an alien, born in the enemy's country, and, prima facie, was an alien enemy.

Again; admitting that the plaintiff was a naturalized citizen, he might, on the principles of natural and unalienable allegiance, be treated as a spy. He might be treated according to the laws of his native country. The doctrine of perpetual allegiance has been recognized by our Courts. In the case of Isaac Williams, who was tried in the Circuit Court of the United States, for the district of Connecticut, in September, 1799, Chief Justice Ellsworth adopted the principle and the reasoning of Blackstone, relative to allegiance, or the political compact, and considered it as still the common law of this country. He accordingly rejected the evidence offered by the prisoner, to show that he was a naturalized citizen of France.

A court-martial had power to try the question, whether Shaw was a naturalized citizen or not. Citizenship is a plea that might be urged by every person arrested as a spy, and it must necessarily be tried by the court-martial before whom he is brought. It may be said, the articles of war of the United States speak only of officers and soldiers: so do the mutiny acts in England; yet courts-martial try the question, whether a person is a soldier or not.

*261 Again, as to the policy of this doctrine; it is essential to the public safety. Salus populi suprema lex est. This is not a doctrine dangerous to liberty, or to the rights of citizens, qualified as it is with the requisites, that there must be a case of necessity, a probable cause, for the arrest. Silent leges inter arma. In cases which are for the public good, a man may justify doing a wrong; as, in time of war, a person may erect bulwarks on the land of another.^d1 A man may justify pulling down a house that is burning, to save the neighboring houses. Cases of necessity and public exigency are exceptions to the general rules of common law. If the rights of public property may be violated, in time of war, for the public good, why may not the rights of person be violated also? It is admitted on all hands, that if the plaintiff had been a spy, his detention would have been justifiable and proper. Now, the defendant did nothing more than every officer, in his situation, was bound to do; that is, to make inquiry into the truth of the facts charged against the prisoner, whom it was necessary to detain, until the fact of his being a spy, or not, could be ascertained. It is impossible for the commanding officer to know whether the person arrested is a spy or not without investigation.

But the plaintiff, being an alien, born in Scotland, was, prima facie, an enemy; and there was, therefore, a probable cause for the detention.

Again; had not the defendant a right to detain the plaintiff, in order to deliver him over to the civil power, there being a charge of treason against him? The 82d article of war requires every officer or provost marshal, to whose charge prisoners are committed, within twenty-four hours after such commitment, or as soon as relieved from his guard, to report, in writing, to the commanding officer, the names of the prisoners, their crimes, and the names of the persons who committed them.

Then, what are the rights and privileges of a native citizen? He is entitled, in every possible case, to protection from military power. The laws, rules, and articles of war, apply exclusively to officers and soldiers, or such persons as are subject to military law. These military courts-martial are of very special and limited jurisdiction. Martial law, as it is called, is, as Sir Matthew Hale^‡ observes, in truth, no law, but something merely indulged as law.^a The civil or municipal law knows no such thing as a military state or military court. Our citizens, in this respect, are in the same state as if no war existed. Independent of the munity act in England, or of our act of congress relative to the army, no such thing as a court-martial or military law is known. Without this special act, a court-martial would not have power even to try a spy. Being a spy is an offence against the law of nations, and might be tried by a Court of common law. The second section of the act establishing rules and articles of war, passed April 10, 1806, defines a spy. It declares, “that, in time of war, all persons not citizens of, or owing allegiance to, the United States of America, who shall be found, lurking as spies, in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court-martial.” It cannot, surely, be pretended that the plaintiff, a naturalized citizen, could be treated as a spy. The plaintiff is entitled to all the benefits of our constitution and bill of rights. It is one of the very grievances enumerated in the declaration of independence, that the king had affected to *263 render the military independent of, and superior to, the civil power. It is matter of astonishment, that in less than forty years, and in the life of the men who framed that instrument, it should be urged in a Court of justice, that this military power can be exercised in this country: in England it would not even be debated.

The bill of exceptions does not state even that the defendant offered to prove, that the plaintiff was lurking in or about the fortifications or camp at Sacket's Harbor. If the defendant meant to justify, he ought to have pleaded specially, or given notice of the precise facts he intended to prove. The notice states no more than what the defendant offered to prove, namely, that Hopkins and Findley, officers of the army of the United States, committed the plaintiff to the officer of the guard, or provost marshal; and that the defendant, therefore, had a right to detain him, until he inquired into his case, or had the plaintiff tried by a court-martial.

If the two officers who arrested the plaintiff were trespassers, then the defendant was a trespasser: he must be deemed, by relation, a party to the original arrest: in judgment of law, he was present, and a party to the arrest--every officer and soldier was under his absolute command and control. The plaintiff, moreover, was brought into the presence of the defendant, and claimed his rights as a citizen; but the defendant ordered him back to the guard house. A moment's delay, after such a claim, for any cause, was unjustifiable. A military commander, after a claim of citizenship, cannot detain the party, or, if he does so, it is at his peril. The defendant said he knew nothing of the civil law, but should be governed by the martial law.

Because courts-martial have jurisdiction over spies, it does not follow that they have a right to detain and try every person charged as a spy. To make out a justification, the defendant should show that he had jurisdiction over the person of the plaintiff. If a military commander is allowed to be a judge, and to decide the question whether a person be a citizen or not, he has jurisdiction throughout, and may order a court-martial, and have the party tried and executed. If such be the law, on what ground did this Court issue a habeas corpus, in the case of Stacy, to a military commander, and order an attachment against him, in case he did not discharge the prisoner forthwith? If the *264 commander, in that instance, had authority to try, this Court could not discharge on habeas corpus.

But it is said the defendant might detain the plaintiff, in order to hand him over to the civil magistrate. This is a new ground of justification. The defendant did not pretend to be a civil or peace officer. It is the first time we have heard of military commanders being peace officers. An officer of the peace is bound to inquire, and may justify an arrest and detention, on probable cause. A mere citizen arresting another for a felony, does it at his peril. But what grounds, or probable cause, have been shown by the defendant? The plaintiff was arrested fifteen miles from Sacket's Harbor, and his place of residence was more than one hundred miles from that place.

Again; the facts in justification were before the jury.

The detention of the plaintiff, before he was reported to the defendant, cannot be imputed to the defendant. And the defendant had a right, afterwards, to detain the plaintiff a reasonable time, to inquire into the case, and ascertain the truth of his claim to be discharged.^‡ And what is a reasonable time, must depend on the circumstances of the case. Now the Court below decided that the defendant had no right to detain the plaintiff at all, not that he detained him an unreasonable time.

Admitting that the defendant had no right to decide the question, whether the plaintiff was a citizen or not; we say, that for that very reason, he had a right to detain him, until the question could be decided by a court-martial, or the proper authority.

This case comes before the Court upon a writ of error, to the *265 Common Pleas of Jefferson county, upon a bill of exceptions taken at the trial, for excluding the testimony offered on the part of the defendant below. The action was for false imprisonment; and the defendant, under the general issue, gave notice of a justification; to support which, upon the trial, he offered to prove, that the plaintiff was committed to the provost guard by Hopkins and Findley, who were officers of the army of the United States, charging him, the plaintiff, in writing, with having excited mutiny among the citizens of the United States, violating his parole, as a prisoner, and engaging in an illicit trade, and furnishing the enemy with necessaries from the United States, and being an enemy's spy in time of war between Great Britain and the United States. It appeared in evidence, on the part of the plaintiff below, that he was a naturalized citizen of the United States, and was arrested by Findley and Hopkins, at a place called Adams, about fifteen miles distant from Sacket's Harbor, where the army was stationed. Under these circumstances, the question presented to the Court below was, whether the evidence offered on the part of the defendant would amount to a justification. It was overruled as a justification, but admitted, or offered to be received, in mitigation of damages.

There can be no doubt but that the rights and the responsibility of the defendant must be governed by the rules of law, applicable to Courts of special and limited jurisdiction. And it is a general rule, that where such a Court has neither jurisdiction of the subject matter, nor of the person, every thing done is absolutely void, and all are trespassers who are concerned in the proceedings. None of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy. There was, therefore, a want of jurisdiction, either of the person or of the subject matter, as to all the offences alleged against the plaintiff. There can be no doubt but that Hopkins and Findley were trespassers, and the defendant's liability must depend upon the fact, how far he has ratified and affirmed their acts, or has himself undertaken to exercise any restraint over the plaintiff. Had he barely refused to discharge him until tried by a court-martial, I should *266 question whether he could be made a trespasser by such refusal. But he went further, and, in some measure, affirmed the arrest; for, on application being made to him in behalf of the plaintiff, he said he had such a man in the provost guard, and that he should not release him, until he saw Hopkins; that he knew the martial law, and must be governed by it; thus claiming the right to hold and try him by a court-martial. Nor did the defendant stop here: he undertook to act affirmatively, and ordered the plaintiff to be brought before him, and after making some examination and inquiries, remanded him to the custody of the provost marshal. This was a direct and positive exercise of authority and restraint.

The damages recovered against the defendant appear to me to be very high; but this is a question which cannot be taken into consideration by this Court. The judgment must be affirmed, unless the evidence offered by the defendant could have afforded a complete justification. The conduct of the defendant in this case, does not appear to have been harsh and oppressive. But it is the principle involved in it, which renders the question important. If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority. It was not pretended, on the argument, that if the plaintiff was a citizen he was amenable to a court-martial for any of the offences alleged against him. And the defendant could certainly have no legal right to detain him to try that question before a court-martial. In this respect, he acted at his peril. Suppose a habeas corpus had been issued from this Court to bring up the plaintiff, would it have been a sufficient return by the defendant, that he detained him for the purpose of trying by a court-martial whether he was a citizen or not? The defendant does not stand in the situation of a subordinate officer, bound to obey the command of his superiors. He was the commanding officer at Sacket's Harbor, and had a right, without doubt, to discharge the plaintiff. At all events, Hopkins and Findley had no authority to compel him to detain him. Had the suit been against the provost marshal, more difficulty would have been presented. For, under the rules and articles of war, he was bound to receive him; and he would have exposed himself to punishment had he voluntarily released him. (1 sess. 9 Cong. ch. 20. ar. 80, 81.) The *267 situation of the provost marshal might be considered somewhat analogous to that of the pound-keeper in Badkin v. Powell, (Cowp. 476.) where it was held, that he was not a trespasser merely for receiving a distress, though the original taking was tortious, because he was bound to take and keep whatever was brought to him. But the defendant cannot be protected under this principle. He had, as I have before shown, made himself the party detaining the plaintiff. The general rule which appears to be laid down in the books is, that where the subject matter of any suit is not within the jurisdiction of the Court applied to for redress, every thing done is absolutely void, and the officer, as well as the party, becomes a trespasser. But when the subject matter is within the jurisdiction of the Court, and the want of jurisdiction is to the person or place, then the officer is excused, unless the want of jurisdiction appears on the process. (10 Coke, 76. Hard. 480.) But in the case of Wise v. Withers, (3 Cranch, 331.) the liability, even of the officer, was extended by the Supreme Court of the United States beyond what this rule would seem to warrant. It was there held, that trespass lies against a collector of militia fines, who distrained for a fine imposed by a court-martial upon a person not liable to be enrolled; the court-martial having no jurisdiction in such cases. The Court said, it is a settled principle, that the decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who acts under it; that the Court and officers are all trespassers. It is unnecessary, in the present case, to press the principle so far, as the defendant cannot, in any manner, be considered as standing in the light of a ministerial officer. That a want of jurisdiction of the person renders the proceedings void, and makes the party procuring them a trespasser, is well settled. As in the case of Perkin v. Proctor, (2 Wils. 382.) where it was held, that trespass lies against the assignees under a commission of bankruptcy, sued out against a person not liable to be declared a bankrupt. And in the case of Mostyn v. Fabrigas, (Cowp. 175.) Lord Mansfield, in giving the opinion of the Court, refers to a suit brought by a carpenter in the train of artillery, against Governor Sabine, who had barely confirmed the sentence of a court-martial, by which the plaintiff had been tried and sentenced to be whipped, and the governor was held responsible, in an action of trespass, because the plaintiff was not liable to *268 martial law. Although there is no reason to believe but that the defendant acted in good faith, and under an honest impression that he was discharging his duty, yet we think he acted without authority, and that the matter offered in evidence would not have afforded a justification. The judgment of the Court below must therefore be affirmed.