Ex parte Bushnell. Ex parte Langston. the sentence pronounced, is incompatible with the constitution of the United States, and therefore void. But at the very threshold of the proceeding, I am met with a claim of power on the part of the federal government, which, if well founded, is an insurmountable objection to any further inquiry, but which, I must add, strikes one almost dumb with its audacity. It is insisted that whenever, by a return to its writ of habeas corpus, the tribunal of a state is advised that the relator is detained in custody under color of federal authority, whether the exercise of that authority be assumed by any court, judge, or ministerial officer of the federal government, the state of which the relator is a citizen, and within which he is detained, is powerless to inquire into the validity of that detention. In other words, it is said-for the claim presupposes and admits all this-that however unwarrantable may. be the exercise of the assumed authority, however tyrannical, arbitrary, and unlawful the detention; however directly prohibited in the particular instance by the plain words of the constitution, yet the state tribunals are powerless to redress the acknowledged wrong; the victim has no appeal but to the usurper itself. Now, I submit to your honors, that the bare statement of this claim is its own most conclusive answer. For, in effect, the proposition, as 99] narrowed down to this particular case, is, that federal judges may, by asserting, in the form of an adjudication, power to do an act unconstitutional in itself, bind all persons whatever, and preclude them from inquiring either into the validity of the act done, or the existence of the power to do it. But, may it please your honors, if a judge, by declaring that he has power to imprison, can estop all inquiry into the existence of that power, he may equally, by insisting that he has power over property or life, estop all inquiry into the existence of that power. And what is this power but that absolute, arbitrary dominion over all things and persons, which constitutes the very essence of despotism? Now, whatever power these judges may legitimately exercise, is derived from the government of the United States. That government is one of limited and delegated powers. The authority of its judicial, and all other departments, is defined by specific metes and bounds; and that there may be no mistaking these limits, they are written down in what is called its constitution; and, to make assurance doubly sure, the same instrument declares that all powers not comprehended within these limits do not belong to it. Ex parte Bushnell. Ex parte Langston. But to what purpose is it that this power is thus specifically bounded in, if the power so intended to be restrained may at any time overleap these limits? The distinction (said Chief Justice Marshall, in Marbury v. Madison) between a government of limited and of absolute power is utterly gone, if the defined restrictions do not, in fact, restrain the power, and acts authorized and acts prohibited are to be taken as of equal obligation. Now it is plain beyond all argument, that any adjudication of a federal judge, repugnant to the constitution, is void, or if not void, that such judge may, by his own decision, alter the constitution. From one or the other of these alternatives there is no escape. It is either an absolute nullity to be everywhere treated as void, or else, instead of a republican government exercising only specially delegated powers, we have one whose sway is bounded only by its own will, and have [100 vainly attempted to limit a power which, in its very nature, is illimitable. Again, I ask, then, does a judgment of a court, repugnant to the constitution, and therefore void, notwithstanding its invalidity, bind all persons and things within its apparent scope? To ask that question is to answer it. In this case the judicial action of this court is invoked to liberate these applicants. Upon the one hand, the constitution which you are sworn to support, prohibits these men from being imprisoned for the cause alleged. On the other hand, the federal judge in Cleveland says they shall be imprisoned. Which of these two is to command the obedience of the court? Is the constitution superior to the ruling of that judge, where the two conflict, or is the ipse dixit of that judge to override the constitution? That is the simple question. If the latter is to control, then an act which, upon the very theory of the government, is entirely void, is yet in practice completely obligatory; an act which the constitution expressly forbids to be done is, notwithstanding the prohibition, entirely effectual. To what purpose, then, docs the constitution itself declare that it is obligatory upon you as judges, and why require you to swear to support it, if, at the same time, you are obliged to violate it at the will of any federal judge? But then it is said that the courts of the United States are su preme within their sphere; all agree to that; but what then? So also are the state courts supreme within their sphere; and the same argument which proves that the federal courts have a right to determine the extent of their jurisdiction and impose that determina Ex parte Bushnell. Ex parte Langston. tion on state courts, proves equally that the state courts have also the right to determine the extent of their jurisdiction, and conclude the federal courts by that determination. But the question here is not of the supremacy of the federal government within its sphere, but whether it is supreme beyond it; for the proposition implies that the adjudication in the case supposed, was an usurpation of power 101] *And, may it please your honors, the dogma of the supremacy of the federal courts within their sphere, and their utter impotence beyond it, suggests the true rule; for it is only the statement, in another form, of the maxim that the judgment of a court of competent jurisdiction is everywhere conclusive, save on proceedings directly instituted to review it; while the judgment of a court which has not jurisdiction, is, in law, no judgment at all. By competent jurisdiction is meant, that the court has constitutional and legal capacity to determine the subject-matter of the litigation, and that the parties interested in that subject-matter and whose rights therein are to be determined, have been properly brought before it. When these two conditions exist, it has jurisdiction. The right to adjudicate the case is vested in the court; and, whether that right is exercised regularly or irregularly, erroneously or otherwise, its judgment binds all persons and things which fall within its legitimate scope. But this immunity from collateral question, depends solely upon the presence of these two conditions, for if it has not the constitutional capacity to hear the cause, or if the party sought to be affected has not been duly brought into court, then its judgment concludes nothing. If it has this jurisdiction, its proceedings import absolute verity; if it has not, its judgment is an absolute nullity. When, therefore, in any proceeding in any court, the judgment of another tribunal, whether as between the same parties, or otherwise, is interposed, either to establish or defeat some right then in litigation, the very first inquiry always is: Had the tribunal. rendering this judgment jurisdiction? If it had, it concludes, in the then litigation all rights which were within its scope; if it had not, it is treated as mere waste paper, and the rights which it sought to adjudicate still remain open for discussion and judgment. No judgments, civil or criminal, are exempt from this rule. It is of absolutely universal application, from the court of a justice of the 102] peace up to the highest tribunals. Each one, when called on to recognize the judgment of another power, whether state or national, home or foreign, first inquires and first determines whether Ex parte Bushnell. Ex parte Langston. it had jurisdiction. Nor until now, and in these cases under the fugitive act, has it ever been hinted, that any court was concluded from making this inquiry because the other tribunal, which rendered the judgment, asserted itself to have competent jurisdiction. Now if the learned counsel who represents the federal government (Col. Swayne), should bring his action against me in a state court, upon a judgment which he claimed to have recovered against me in the circuit court of the United States, and upon production of the record of that court it should appear affirmatively, either that in that court he had sued me to recover a penalty given only by a statute of this state; or that-the subject-matter being within its jurisdiction-I had never been served with process or otherwise brought into court, does any lawyer within the sound of my voice, does even the learned counsel himself, suppose that the state court would hold itself or me concluded by that judgment? Surely not. Every tyro in the law knows better. In the one case the judgment would be void for want of constitutional capacity to adjudge any such penalty; in the other, for want of jurisdiction over the person of myself. Nobody doubts that. But, may it please your honors, if in an action touching the rights of property, you may, in a state court, impeach the judgment of a federal court for the want of jurisdiction, a fortiori, may you do the same thing in every proceeding which concerns the rights of personal freedom. If in an action pending before it, a state court may inquire whether a federal court had power to dispose of an ox or an ass, how much more, upon this great writ of habeas corpus, may it not inquire, whether that same court has power to dispose of the liberty of the citizen? When, therefore, in response to Bushnell's challenge, made in the prescribed legal mode, Marshal Johnson says he restrains him of his liberty under a sentence pronounced by Hiram V. *Wilson, judge of the district court, it is a sufficient reply [103 to say either generally that Mr. Wilson was no judge at all, or that his judicial power did not extend to the case in which Bushnell was sentenced. For if, as to the particular case, he had no power to render judgment, it is precisely the same as if he was not judge at all. Now, suppose he had undertaken to try Bushnell without a jury, or the offense charged was that of selling game out of season, are we to be told, that, simply because in doing this the judge claimed to act under federal authority, we are bound to shut our eyes to this usurpation of power; that the sentence is an estoppel VOL.IX-6 81 Ex parte Bushnell. Ex parte Langston. concluding all inquiry, save on a writ of error to review it? Looking, then, only at the general principle applied daily to the most solemn adjudications of every tribunal, this court must inquire and determine for itself whether Judge Wilson had jurisdiction to award the judgment under which these two citizens are held in custody. But again: The right of the state to inquire into the validity of any authority imposing restraint upon its citizens as against every power, be it state, national, or foreign, stands on an even firmer basis, for it results from the very nature of sovereignty itself. The first and chief characteristic of all sovereignty is its right to the, allegiance and service of its citizens-a right fundamental to all other rights of a state, for on this its very existence, in war or peace, continually depends. Correlative to, or rather comprehended in, this this right, is the power to remove any unlawful restraint enforced against any one of its citizens, to the twofold end that the state may not be improperly deprived of his services, and that it may efficiently discharge that supreme and imprescriptible duty of protection which, as a return for his allegiance, every state owes to the citizen. On the these two principles-allegiance to the state, protection to the citizen-rests not merely all sovereignty, but the very social compact itself. Any nation which has wholly surren104] dered the allegiance of its citizens, or its correlative incidental right to protect them while within its territorial limits, has, in that very act, abnegated every attribute of sovereignty, and become the mere local dependency of the power to which that allegiance and right have been surrendered. But Ohio, thank God, is still a sovereign state, and has, therefore, never yielded this right, as she never could yield it, and still preserve her sovereignty, to the federal or any other government. In all the constitution, I find no such grant. I find nothing prohibiting its continued residence with the states. In a few carefully guarded and specifically enumerated instances, the state has delegated to the federal government power to punish, and has renounced the right to prevent that punishment; but, in even these instances, she has retained the power to inquire whether this limited authority for punishing is kept within its narrow bounds. In all else, save these special instances, the state reserved the power to prevent all punishment not imposed by itself; and in all cases, including even these, she reserved the right to inquire into the nature of every authority which sought to deprive any citizen of his liberty. For it will not |