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tution. But it is conferred "with such excep. the exercise of judicial power by the legislature, tions and under such regulations as Congress or of legislative interference with courts in the shall make."

exercising of continuing jurisdiction.* It is unnecessary to consider whether, if Con On the other hand, the general rule, supported gress had made no exceptions and no regulations, by the best elementary writers,† is, that when this court might not have exercised general ap- an act of the legislature is repealed, it must be pellate jurisdiction under rules prescribed by considered, except as to transactions past and itself. For among the earliest acts of the 1st closed, as if it never existed.” And the effect of Congress, at its 1st session, was the act of Septem- repealing acts upon suits under acts repealed has ber 24, 1789, to establish the judicial courts of been determined by the adjudications of this the United States. That act provided for the court. The subject was fully considered in Nororganization of this court, and prescribed regu- ris vs. Crocker, f and more recently in Insurance lations for the exercise of its jurisdiction. Company vs. Ritchie. In both of these cases it

The source of that jurisdiction, and the limita- was held that no judgment could be rendered in tions of it by the Constitution and by statute, a suit after the repeal of the act under which it have been on several occasions subjects of con was brought and prosecuted. sideration here. In the case of Durousseau vs. It is quite clear, therefore, that this court canThe United States, * particularly, the whole mat- not proceed to pronounce judgment is this case, ter was carefully examined, and the court held for it has no longer jurisdiction of the appeal; that, while “ the appellate powers of this court and judicial duty is not less fitly performed by are not given by the judicial act, but are given declining ungranted jurisdiction than in exerby the Constitution," they are nevertheless "lim- cising firmly that which the Constitution and ited and regulated by that act, and by such other the laws confer. acts as have been passed on the subject.” The Counsel seem to have supposed, if effect be court said further, that the judicial act was an given to the repealing act in question, that the exercise of the power given by the Constitution whole appellate power of the court in cases in to Congress of making exceptions to the appel- habeas corpus is denied. But this is an error. late jurisdiction of the Supreme Court.” “They The act of 1868 does not except from that jurishave described affirmatively," said the court, “its diction any cases but appeals from circuit courts jurisdiction, and this affirmative description has under the act of 1867. It does affect the jurisbeen understood to imply a negation of the exer- diction which was previously exercised.|| cise of such appellate power as is not compre The appeal of the petitioner in this case must hended within it."

be dismissed for want of jurisdiction. The principle that the affirmation of appellate jurisdiction implies the negation of all such ju

Opinions in the Cæsar Griffin Case-Virginia. risdiction not affirmed having been thus established, it was an almost necessary consequence OPINION OF CHIEF JUSTICE CHASE, MAY 10, 1869. that acts of Congress, providing for the exercise Circuit court of the United States for the district of of jurisdiction, should come to be spoken of as Virginia, in the matter of Cæsar Griffin-Petition for acts granting jurisdiction, and not as acts making habeas corpus. exceptions to the constitutional grant of it. This is an appeal from an order of discharge

The exception to appellate jurisdiction in the from imprisonment made by the district judge, case before us, however, is not an inference from acting as a judge of the circuit court, upon a writ the affirmation of other appellate jurisdiction. It of habeas corpus, allowed upon the petition of is made in terms. The provision of the act of Cæsar Griffin. 1867, affirming the appellate jurisdiction of this The petition alleged unlawful restraint of the court in cases of habeas corpus, is expressly repetitioner, in violation of the Constitution of pealed. It is hardly possible to imagine a plainer the United States, by the sheriff of Rockbridge instance of positive exception.

county, Virginia, in virtue of a pretended judgWe are not at liberty to inquire into the mo- ment rendered in the circuit court of that county tives of the legislature. We can only examine by Hugh W. Sheffey, presentand presiding therein into its power under the Constitution; and the as judge, though disabled from holding any office power to make exceptions to the appellate juris- whatever by the XIVth amendment of the Condiction of this court is given by express words. stitution of the United States.

What, th is the effect of the repealing act Upon this petition a writ of habeas corpus was upon the case before us? We cannot doubt as allowed and served, and the body of the petito this. Without jurisdiction the court cannot tioner, with a return showing the cause of detenproceed at all in any cause. Jurisdiction is tion, was produced by the sheriff, in conformity power to declare the law, and when it ceases to with its command. exist, the only function remaining to the court is The general facts of the case, as shown to tbe that of announcing the fact and dismissing the district judge, may be briefly stated as fol

lows: And this is not less clear upon authority than The circuit court of Rockbridge county is a upon principle.

court of record of the State of Virginia, having Several cases were cited by the counsel for the civil and criminal jurisdiction. In this court, petitioner in support of the position that juris- the petitioner, Cæsar Griffin, indicted in the diction of this case is not affected by the repealBut none of them, in our judgment, vs. Fleming, 7 Humph., 152; Lewis rs. Webb, 3 Greene,

*De Chastellux vs. Fairchild, 15 Pa., 18; The State afford any support to it. They are all cases of 326; Lanier vs. Gallatus, 13'LA. An., 175.

f Dwarris on Statutes, 538. |13 How., 4:20. 85 Wall., 541. *6 Cranch, 312; Wiscárt vs. Dauchy, 3 Dall., 321. 1 Ex parte McCardle, 6 Wall, 324.

cause.

ing act.

county court for shooting, with intent to kill, people adhered to the national Government; and was regularly tried in pursuance of his own elec- representatives from those counties soon after astion; and, having been convicted, was sentenced sembled in convention at Wheeling, and organaccording to the finding of the jury, to imprison- ized a government for the State. This government for two years, and was in the custody of ment was recognized as the lawful government the sheriff to be conveyed to the penitentiary, in of Virginia by the executive and legislative depursuance of this sentence.

partments of the national Government, and this Griffin is a colored man; but there was no recognition was conclusive upon the judicial allegation that the trial was not fairly conducted, department. or that any discrimination was made against The government of the State thus recognized him, either in indictment, trial, or sentence, on was, in contemplation of law, the government of account of color.

the whole State of Virginia, though excluded, as It was not claimed that the grand jury by the Government of the United States was itself which he was indicted, or the petit jury by which excluded, from the greater portion of the terrihe was tried, was not in all respects lawful and tory of the State. It was the legislature of the competent. Nor was it alleged that Hugh W. reorganized State which gave the consent of VirSheffey, the judge who presided at the trial and ginia to the formation of the State of West Virpronounced the sentence, did not conduct the ginia. To the formation of that State the consent trial with fairness and uprightness.

of its own legislature and of the legislature of One of the counsel for the petitioner, indeed, the State of Virginia and of Congress was indisupon the hearing in this court, pronounced an pensable. If either had been wanting, no State eulogium upon his character both as a man and within the limits of the old could have been as a magistrate, to deserve which might well be constitutionally formed; and it is clear, that if the honorable aspiration of any judge. the government instituted at Wheeling was not

But it was alleged and was admitted that the government of the whole State of Virginia, no Judge Sheffey, in December, 1819, as a member new State has ever been constitutionally formed of the Virginia house of delegates, took an oath within her ancient boundaries. to support the Constitution of the United States, It cannot admit of question, then, that the and also that he was a member of the legisla- government which consented to the formation ture of Virginia during the late rebellion in of the State of West Virginia, remained, in all 1862, and as such voted for measures to sustain national relations, the government of Virginia, the so-called Confederate States in their war although that event reduced to very narrow against the United States; and it was claimed limits the territory acknowledging its jurisdicin behalf of the petitioner that he thereby be- tion, and not controlled by insurgent force. Incame, and was at the time of the trial of the deed, it is well known, historically, that the State petitioner, disqualified to hold any office, civil and the government of Virginia, thus organized, or military, under the United States, or under was recognized by the national Government. any State; and it was specially insisted that the Senators and Representatives from the State ocpetitioner was entitled to his discharge upon the cupied seats in Congress, and when the insurgent ground of the incapacity of Sheffey under the force which held possession of the principal part XIVth amendment to act as judge and pas3 sen- of the territory was overcome, and the governtence of imprisonment.

ment recognized by the United States was transUpon this showing and argument it was held ferred from Alexandria to Richmond, it became by the district judge that the sentence of Cæsar in fact, what it was before in law, the governGriffin was absolutely null; that his imprisonment of the whole State. As such it was entitled, ment was in violation of the Constitution of the under the Constitution, to the same recognition United States, and an order fòr his discharge and respect, in national relations, as the governfrom custody was made accordingly.

ment of any other State. The general question to be determined on the It was under this government that Hugh W. appeal from this order is whether or not the Sheffey was, on the 22d February, 1866, duly sentence of the circuit court of Rockbridge coun-appointed judge of the circuit court of Rockbridge ty must be regarded as a nullity, because of the county, and he was in the regular exercise of his disability to hold any office under the State of functions as such when Griffin was tried and Virginia imposed by the XIVth amendment on sentenced. the person who in fact presided as judge in that More than two years had elapsed, after the court.

date of his appointment, when the ratification of iu may be properly borne in mind that the the XIVth amendment by the requisite number disqualification did not exist at the time that of States was officially promulgated by the SecSheffey became judge.

retary of State, on the 28th of July, 1868. When the functionaries of the State govern That amendment, in its 3d section, ordains ment existing in Virginia at the commencement that “no person shall be a senator or representof the late civil war took part, together with a ative in Congress, or elector of President and majority of the citizens of the State, in rebellion Vice President, or hold any office, civil or miliagainst the Government of the United States, tary, under the United States, or under any State, they ceased to constitute a State government for who, having previously taken an oath as a memthe State of Virginia which could be recognized ber of Congress, or as an officer of the United as such by the national Government. Their ex- States, or as a member of any State legislature, ample of hostility to the Union, however, was not or as an executive or judicial officer of any State, followed throughout the State. In many coun- to support the Constitution of the United States, ties the local authorities and majorities of the shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the ment? What is the true scope and purpose of enemies thereof."

the prohibition to hold office contained in the And it is admitted that the office held by Judge third section? Sheffey, at the time of the trial of Griffin, was The proposition maintained in behalf of the an office under the State of Virginia, and that he petitioner is, that this prohibition instantly, on was one of the persons to whom the prohibition the day of its promulgation, vacated all offices to hold office pronounced by the amendment ap. held by persons within the category of prohibiplied.

tion, and made all official acis performed by The question to be considered, therefore, is them since that day null and void. whether, upon a sound construction of the amend One of the counsel sought to vindicate this ment, it must be regarded as operating directly, construction of the amendment upon

the

ground without any intermediate proceeding whatever, that the definitions of the verb " to hold,” given upon all persons within the category of prohibi: by Webster, in his dictionary, are "to stop; to tion, and as depriving them at once and abso- confine; to restrain from escape ; to keep fast; lutely of all official anthority and power. to retain;" of which definitions the author says

One of the counsel for the petitioner suggested that “to hold rarely or never signifies the first that the arendment must be construed with refer- act of seizing or falling on, but the act of retainence to the act of 1867, which extends the writing a thing when seized on or confined," of habeas corpus to a large class of cases in which The other counsel seemed to be embarrassed the previous legislation did not allow it to be by the difficulties of this literal construction, issued. And it is proper to say a few words of and sought to establish a distinction between this sugge-tion here

sentences in criminal cases and judgments and The judiciary act of 1789 expressly denied the decrees in civil cases. He admitted, indeed, that benefit of the writ of habeas corpus to prisoners the latter might be valid when made by a court not confined under or by color of the authority held by a judge within the prohibitive category of the United States. Under that act no person of the amendment, but insisted that the senconfined under State authority could have the tences of the same court in criminal cases must benefit of the writ. Afterwards, in 1833 and be treated as nullities. The ground of the dis1842, the writ was extended to certain cases, spe tinction, if we correctly apprehend the argument, cially described, of imprisonment under State was found in the circumstance that the act of process; and in 1867, by the act to which the 1867 provided a summary redress in the latter counsel referred, the writ was still further ex. class of cases; while in the former no summary tended “to all cases where any person may be remedy could be had, and great inconvenience restrained of liberty in violation of the Consti: would arise from regarding decrees and judgtution, or of any treaty or law of the United ments as utterly null and without effect. States."

But this ground of distinction seems to the And the learned counsel was doubtless cor- court unsubstantial. It rests upon the fallacy rect in maintaining that without the act of 1867 already commented on. The amendment makes there would be no remedy for habeas corpus in no such distinction as is supposed. It does not the case of the petitioner, nor, indeed, in any deal with cases, but with persons. The prohicase of imprisonment in violation of the Consti- bition is general. No person in the prohibitive tution of the United States, except in the possi. category can hold office. It applies to all perble case of an imprisonment not only within the sons and to all offices, under the United States provisions of this act, but also within the pro. or any State. If upon a true construction it visions of some one of the previous acts of 1789, operates as a removal of a judge, and avoids all 1833, and 1842.

sentences in criminal cases pronounced by bim But if, in saying that the amendment must be after the promulgation of the amendment it construed with reference to the act, the counsel must be held to have the effect of removing all meant to affirm that the existence of the act judges and all officers, and annulling all their throws any light whatever upon the construc-official acts after that date tion of the amendment, the court is unable to The literal construction, therefore, is the only perceive the force of his observation.

one upon which the order of the learned district It is not pretended that imprisonment for judge discharging the prisoner, can be sustained, shooting with intent to kill is unconstitutional, and was, indeed, as appears from his certificate, and it will hardly be affirmed that the act of the construction upon which the order was made. 1867 throws any light whatever upon the ques. He says expressly, “the right of the petitioner to tion, whether such imprisonment in any partic. his discharge appeared to me to rest solely on the ular case is unconstitutional. The case of un incapacity of the said Hugh W Sheffey to act, constitutional imprisonment must be established (that is, as judge,) and so to sentence the prisoner, by appropriate evidence. It cannot be inferred under the XIV th amendment." from the existence of a remedy for such a case. Was this a correct construction? And, surely, no constructio!, otherwise unwar In the examination of questions of this sort, ranted. can be put upon the amendment more great attention is properly paid to the argument than upon any other provision of the Constitu- from inconvenience. This argument, it is true, tion, to make a case of violation out of acts cannot prevail over plain words or clear reason. which, otherwise, must be regarded as not only But, on the other hand, a construction which constitutional, but right.

must necessarily occasion great public and priWe come then to the question of construction. vate mischief ‘must never be preferred to a What was the intention of the people of the construction which will occasion neither, or United States in adopting the Xivth amend- neither in so great degree, unless the terms of

ence.

the instrument absolutely require such prefer- jority of these officers, had, in one or another of

the capacities described in the third section, Let it then be considered what consequences taken an oath to support the Constitution and would spring from the literal interpretation con- bad afterwards engaged in the late rebellion; tended for in behalf of the petitioner.

and most, if not all, of them continued in the The amendment applies to all the States of discharge of their functions after the promulgathe Union; to all offices under the United States tion of the amendment, not supposing that by its or under any State, and to all persons in the operation their offices could be vacated without category of prohibition, and for all time, present some action of Congres . and future. The offences for which exclusion If the construction now contended for be given from office is denounced are not merely engaging to the prohibitire section, the effect must be to in insurrection or rebellion against the United annul all othcial acts performed by these officers. States, but the giving of aid or comfort to their No sentence, no judgment, no decree, no acenemies. They are offences not only of civil, knowledgment of a deed, no record of a deed, but of foreign war.

no sheriff's or commissioner's sale-in short, no Now, let it be supposed that some of the persons official act is of the least validity. It is imposdescribed in the third section, during the war with sible to measure the evils which such a construcMexico, gave aid and comfort to the enemies of tion would add to the calamities which bave their country, and nevertheless held some office already fallen upon the people of these States. on the 28th of July, 1868, or subsequently The argument from inconveniences, great as

Is it a reasonable construction of the amend these, against the construction contended for, is ment which will make it annul every official act certainly one of no light weight. of such an officer ?

But there is another principle which, in deterBut let another view be taken. It is well mining the construction of this amendment is known that many persons engaged in the late entrled to equal consideration with that which rebellion have emigrated to States which ad. has just been stated and illustrated. It may be hered to the national Government, and it is not stated thus: Of two constructions, either of which to be doubted that not a few among them, as is warranted by the words of an amendment of members of Congress, or officers of the United a public act, that is to be preferred which best States, or as members of State legislatures, or harmonizes the amendment with the general ten. as executive or judicial officers of a State, had or and spirit of the act amended. before the war taken an oath to support the This principle forbids a construction of the Constitution of the United States. In their amendment not clearly required by its terms, new homes, capacity, integrity, titness, and ac- which will bring it into conflict or disaccord ceptability, may very possibly have been more with the other provisions of the Constitution. looked to than antecedents. Probably some of And here it becomes proper to examine somethese persons have been elected to office in the what more particularly the character of the States which have received them. It is not third section of the amendment. unlikely that some of them beld office on the The amendment itself was the first of the se28th July, 1868. Must all their official acts be ries of measures proposed or adopted by Conheld to be null under the inexorable exigencies gress with a view to the reorganization of State of the amendment ?

governments acknowledging the constitutional But the principal intent of the amendment supremacy of the national Government in those was, doubtless, to provide for the exclusion from States which had attempted to break up their office in the lately insurgent States of all per constitutional relations with the Union, and to sons within the prohibitive description. establish an independent confederacy.

Now, it is well known that before the amend All citizens who had, during its earlier stages, ment was proposed by Congress, governments engaged in or aided the war against the United acknowledging the constitutional supremacy of States, which resulted inevitably from this atthe national Government had been organized in tempt, had incurred the penalties of treason all these States. In some these governments under the statute of 1790. had been organized through the direct action of But by the act of July 17, 1862, while the civil the people, encouraged and supported by the war was flagrant, the death penalty for treason President, as in Tennessee, Louisiana and Ar committed by engaging in rebellion was practikansas, and in some through similar action in cally abolished. Afterwards, in December, 1863, pursuance of Executive proclamation, as in full amnesty, on conditions which now certainly North Carolina, Alabama, and several other seem to be moderate, was offered by President States. In Virginia such a State government Lincoln, in accordance with the same act of had been organized as has been already stated, Congress; and, after organized resistance to the soon after the commencement of the war; and United States had ceased, amnesty was again ofthis government only had been fully recognized fered, in accordance with the same act, by Presiby Congress, as well as by the President. dent Johnson, in May, 1865. In both these offers

This government, indeed, and all the others, of amnesty extensive exceptions were made. except that of Tennessee, were declared by Con In June, 1866, little more than a year later, the gress to be provisional only.

XIVth amendment was proposed, and was ratBut in all these States all offices had been ified in July, 1868. The only punitive section filled, before the ratification of the amendment, contained in it is the third, now under considerby citizens who at the time of the rati ication ation. It is not improbable that one of the were actively engaged in the performance of objects of this section was to provide for the setheir several duties. Very many, if not a ma-curity of the nation and of individuals by the

exclusion of a class of citizens from office; but it | any sentence of exclusion can be made to can hardly be doubted that its main purpose operate. To accomplish this ascertainment and was to inflict upon the leading and most influ- insure effective results, proceedings, evidence, ential characters who had been engaged in the decisions, and enforcement of decisions, more or rebellion, exclusion from office as a punishment less formal, are indispensable; and these can for the offence.

only be provided for by Congress. It is true that, in the judgment of some en Now, the necessity of this is recognized by lightened jurists, its legal effect was to remit all the amendment itself, in its fifth and final secother punishment, for it led to the general am- tion, which declares that "Congress shall have nesty of December 25, of the same year, and to power to enforce, by appropriate legislation, the the order discontinuing all prosecutions for crime provisions of this article." and proceedings for confiscation originating in There are, indeed, other sections than the the rebellion. Such certainly was its practical third, to the enforcement of which legislation effect. But this very effect shows distinctly its is necessary; but there is no one which more punitive character.

clearly requires legislation in order to give effect Now, it is undoubted that those provisions of to it. The fifth section qualifies the third to the the Constitution which deny to the legislature same extent as it would if the whole amendment power to deprive any person of life, liberty, or consisted of these two sections. property without due process of law, or to pass And the final clause of the third section itself à bill of attainder, or an ex post facto law, are in- is significant: it gives to Congress absolute conconsistent, in their spirit and general purpose, trol of the whole operation of the amendment. with any provision which at once, without trial, These are its words: “But Congress may, by a deprives a whole class of persons of offices held vote of two thirds of each House, remove such by them for cause, however grave It is true that disability ” Taking the third section then in no limit can be imposed on the people when ex. its completeness, with this final clause, it seems ercising their sovereign power in amending their to put beyond reasonable question the concluown constitution of government. But it is a sion that the intention of the people of the necessary presumption that the people, in the United States in adopting the XIVth amendexercise of that power, seek to confirm and im- ment was to create a disability, to be removed prove, rather than to weaken and impair, the in proper cases by a two thirds vote, and to be general spirit of the Constitution.

made operative in other cases by the legislation If there were no other grounds than these of Congress in its ordinary course. The confor seeking another interpretation of the amend struction gives certain effect to the undoubted ment than that which we are asked to put upon intent of the amendment to insure the exclusion 'it, we should feel ourselves bound to hold them from office of the designated class of persons, if sufficient.

not relieved from their disabilities, and avoids But there is another and sufficient ground, the manifold evils which must attend the conand it is this, that the construction demanded struction insisted upon by the counsel for the in behalf of the petitioner is nugatory except petitioner. for mischief.

It results from this examination that persons In the language of one of the counsel, “the in office by lawful appointment, or elected beobject had in view by us is not to unseat Hugh fore the promulgation of the XI Vth amendW Sheffey, and no judgment of the court can ment, are not removed therefrom by the direct effect that."

and immediate effect of the prohibition to hold Now, the object of the amendment is to un- office contained in the third section; but that seat every officer, whether judicial or executive, legislation by Congress is necessary to give who holds civil or military office in contraven- effect to the prohibition, by providing for such tion of the terms of the amendment. Surely, a removal. And it results further, that the exerconstruction which fails to accomplish the main cise of their several functions by these officers, purpose of the amendment and yet necessarily until removed in pursuance of such legislation, works the mischiefs and inconveniences which is not unlawful. have been described, and is repugnant to the The views which have been just stated receive first principles of justice and right embodied in strong confirmation from the action of Congress other provisions of the Constitution, is not to be and of the executive department of the Govfavored if any other reasonable construction can ernment. The decision of the district judge, be found.

now under revision, was made in December, Is there, then, any other reasonable construc- 1868, and two months afterwards, in February, tion? In the judgment of the court there is 1869, Congress adopted a joint resolution, enti; another, not only reasonable, but very clearly tled “ A resolution respecting the provisional warranted by the terms of the amendment, and governments of Virginia and Texas.” In this recognized by the legislation of Congress. resolution it was provided, that persons "hold

The object of the amendment is to exclude ing office in the provisional governments of from certain offices a certain class of persons. Virginia and Texas,” but unable to take and Now, it is obviously impossible to do this by a subscribe the test-oath prescribed by the act simple declaration, wbether in the Constitution of July 2, 1862, except those relieved from disor in an act of Congress, that all persons in ability, “be removed therefrom ;" but a procluded within a particular description shall not vision was added, suspending the operation of hold office. For, in the very nature of things, the resolution for thirty days from its passage, it must be ascertained what particular indi. The joint resolution was passed and received viduals are embraced by the definition before by the President on the 6th of February, and,

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