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not having been returned in ten days, became a , stances, and that no person holding any such law without his approval.

office sball, while holding such office, be a memIi cannot be doubted that this joint resolution ber of either House, operate on the capacity to recognized persons unable to take the oath re take office. The election or appointment itself quired, to which class belonged all persons within is prohibited and invalidated; and yet no inthe description of the third section of the XIVth stance is believed to exist where a person has amendment, as holding office in Virginia at the been actually elected, and has actually taken the date of its passage, and provided for their re- office, notwithstanding the prohibition, and his moval from office.

acts while exercising its functions have been It is not clear whether it was the intent of held invalid. Congress that this removal should be effected in But it is unnecessary to pursue the examinaVirginia by the force of the joint resolution itself, tion. The cases cited by counsel cover the whole or by the commander of the first military district. ground, both of principle and authority.* It was understood by the executive or military This subject received the consideration of the authorities as directing the removal of the per- judges of the Supreme Court at the last term with sons described by military order. The resolution reference to this and kindred cases in this district, was published by command of the general of the and I am authorized to say that they unanimously army, for the information of all concerned, on the concurred in the opinion, that a person convicted 22d of March, 1869. It had been previously by a jury, and sentenced in court held by a judge published by direction of the commander of the de facto, acting under color of office, though not first military district, accompanied by an order, de jure, and detained in custody in pursuance of to take effect on the 18th of March, 1869, remov- his sentence, cannot be properly discharged upon ing the persons described from office. The date habeus corpus. at which this order was to take effect was after It follows that the order of the district judge wards changed to the 21st of March.

must be reversed, and that the petitioner must It is plain enough from this statement that be remanded to the custody of the sheriff of persons holding office in Virginia, and within Rockbridge county. the prohibition of the XIVth amendment, were

OPINION OF JUDGE UNDERWOOD. not regarded by Congress, or by the military authority, in March, 1869, as having been already in the matter of Cæsar Griffin-Petition for habeas removed from office.

It is unnecessary to discuss here the question In entering upon the consideration of this case, whether the government of Virginia, which seems I am oppressed by the gravity of the principles to have been not provisional, but permanent, when and consequences it involves. The history of transferred from Alexandria to Richmond, be. civilization has established the fact that the lib, came provisionalunder the subsequent legislation erties of the people in all modern nations depend of Congress, or to express any opinion concern- upon the restraints which courts of justice have ing the validity of the joint resolution, or of the succeeded in opposing to the oppressions of typroceedings under it. The resolution and pro. rants and usurpers. And no device for this purceedings are referred to here only for the purpose pose can be compared with the writ of habeas of showing that the amendment had not been corpus, which we have inherited from our regarded by Congress or the executive, so far as English ancestors. represented by the military authorities, as effect That great scholar and writer, Dr. Samuel ing an immediate removal of the officers described Johnson, well said to his friend Boswell, “the in the third section.

habeas corpus is the single advantage which our After the most careful consideration, I find government has over that of other countries." myself constrained to the conclusion that Hugh

The historian Macaulay, in his graphic deW. Sheffey had not been removed from the office scription of the tyrant James the Second, has of judge at the time of the trial and sentence of well written : "One of his objects was to obtain the petitioner; and, therefore, that the sentence a repeal of the habeas corpus act, which he hated, of the circuit court of Rockbridge county was

as it was natural that a iyrant should hate the lawful.

most stringent curb that ever legislation imposed In this view of the case, it becomes unneces on tyranny. This feeling remained deeply fixed sary to determine the question relating to the in his mind to the last, and appears in the ineffect of the sentence of a judge de facto, exercis. structions which he drew up, when in exile, for ing the office with the color, but without the the guidance of his son.

But the habeas corpus substance of right. It is proper to say, however, act, though passed during the ascendancy of the that I should bave no difficulty in sustaining the whigs, was not more dear to t'ie whigs than to custody of the sheriff under the sentence of a the tories. It is, indeed, not wonderful that this cuurt held by such a judge.

great law should be highly prized by all Eng. Instructive argument and illustration of this Tishmen, without distinction of party; for it is branch of the case might be derived from an ex- a law which, not by circuitous, but by direct amination of those provisions of the Constitution operation, adds to the security and happiness of ordaining that no person shall be a representa- every inhabitant of the realm. tive, or senator, or President, or Vice President, The petition in the present case alleges that unless having certain prescribed qualifications the petitioner is deprived of his liberty in vioThese provisions, as well as those which ordain lation of the Constitution of the United States, that no senator or representative shall, during and the evidence proves that he is imprisoned his term of service be appointed to any office

* Taylor vs. Skinner, 2 8. C., C96; State vs. Bloom, 17 under the United States, under certain circum- Wis., 621, Ex rel. Ralston vs. Bangs, 24 III., 184.

under color of a sentence pronounced against A judge capable of understanding the plainest him by a person pretending to be a judge of the English language could entertain no doubt, uncircuit court of Rockbridge county, in the State der the statute, of his duty to issue the writ, on of Virginia; that the said pretended judge, hav. a petition such as was presented in this case; ing previously taken an oath as a member of the and if any doubt could have arisen under the State legislature to support the Constitution of statute standing alone, this decision of the Suthe United States, had engaged in insurrection preme Court of the United States would have or rebellion against the same, or given aid or removed it. comfort to the enemies thereof; whereas the 22. Ought the petitioner, on the return, answer, Constitution of the United States (amendments, and evidence, to be discharged ? Art. XIV) provides that no such person as afore The XIVth amendment to the Constitution said shall'hold any civil office under any State; provides : and, consequently, the said pretended judge bad "SEC. 3. No person shall be a senator or repno jurisdiction over the person or alleged offence resentative in Congress, or elector of President of the petitioner, and all his proceedings in the and Vice President, or hold any office, civil or case were invalid and absolutely void.

military, under the United States, or any State, Two questions are before the court. They are who, having previously taken an oath, as a memboth of a legal, not of a political character, and ber of Congress, or as an officer of the United I propose to consider them strictly upon legal States, or as a member of any State legislature, principles and judicial authority. They are or as an executive or judicial officer of any State,

1. Did the writ properly issue in this case ? to support the Constitution of the United States, 2. Ought the petitioner, on the consideration shall have been engaged in insurrection or rebelof the whole case, to be discharged ?

lion against the same, or given aid or comfort to 1st. Did the writ properly issue?

the enemies thereof." The act of Congress of February 5, 1867, pro The fact that the person who pronounced the vides as follows:

sentence was disqualified, under the XIVth · Be it enacted, &c., &c., That the several amendment of the Constitution of the United courts of the United States and the several jus- States, is not controverted, and I believe to be tices and judges of said courts within their re-l incontrovertible. But it is argued that the court spective jurisdictions, in addition to the authority was a court de facto, and that the disqualificaalready conferred by law, shall have power to tion of the judge cannot be availed of in a colgrant writs of habeas corpus in all cases where lateral proceeding. any person may be restrained of his or her lib Let us examine these two points : erty in violation of the Constitution, or of any First. That it was a court de facto. It is hardtreaty or law of the United States ; and it shall ly worth our while to be frightened, at this day, be lawful for such person so restrained of his or by a little law Latin. De facto means of or from her liberty to apply to either of said justices or the fact, or, more properly, as used here, in fact; judges for a writ of habeas corpus, which appli- that is to say, the objection urged is, that this cation shall be in writing and verified by affidavit, was a court in fact, if not in law. and shall set forth the facts concerning the de Now, let us ask what makes it a court in fact? tention of the party applying, in whose custody Is that a court in fact which the Constitution of he or she is detained, and by virtue of what claim the United States says shall not be a court? Then or authority, is known; and the said justice or the Constitution is a dead letter-a mat to wipe judge to whom such application shall be made our feet upon-not a shield to protect our breasts. shall forth with award a writ of habeas corpus, There can be no such thing, in time of peace, when unless it shall appear from the petition itself that the national authority is everywhere re-establishthe party is not deprived of his or her liberty in ed, as a court prohibited by the plain letter of the contravention of the Constitution and laws of Constitution, (and a court composed of such judges the United States."

is so prohibited,) and yet having power to deprive The petition, in form, complied with the re- citizens of their life or their liberty. Such a prop, quirements of the statute ; and it did not appear osition seems to me the most unmaintainable of from the petition itself that the party is not absurdities on its very face. deprived of his liberty in contravention of the If the doctrine here urged is correct, and is Constitution of the United States. Therefore the the doctrine on which our practice is to be based, obligation would seem to have been imperative it might be advantageously incorporated into this on the judge to whom the application was made XIVth amendment and made a part of it. We to issue the writ. The language of the statute is will see how this amendment would then read. sufficiently plain, even without the aid of judicial I know no betier way to exhibit the untenableconstruction But it has had judicial construc- ness of the proposition than thus to put it into tion by the highest authority in the land. In the shape of that organic law which, it is conMcCardle's case the Supreme Court of the United tended, it ought to control. States, in an opinion delivered by its learned “No person shall hold any civil office" in Chief Justice, with his usual force and elegance theory, though he may in fact, and as a rebel of expression, said:

pretended judge may sentence loyal men to bo "This legislation is of the most comprehensive imprisoned and to be hanged, “who, having precharacter. It brings within the habeas corpus ju- viously taken an oath as a member of Congress, risdiction of every court and of every judge every or as an officer of the United States, or as a mempossible case of privation of liberty contrary to ber of any State legislature, or as an executive the national Constitution, treaties, or laws. It or judicial officer of any State, to support the is impossible to widen this jurisdiction." Constitution of the United States, shall have


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engaged in insurrection or rebellion against the into by the judges. And if they can open it at same, or given aid or comfort to the enemies all, what part of it are they forbidden to read or thereof."

to obey ?"

It is declared that no‘tax How would such a provision as that read? or duty shall be laid on articles exported from And yet, if it is to be the law administered by any State.' the court, it might as well be in the Constitution Suppose a duty on the export of cotton, of or on the statute-book.

tobacco, or of flour, and a suit instituted to reAs a judge of one of the courts of the United cover it. Ought judgment to be rendered in such States I am sworn to support the Constitution a case? Ought the judges to close their eyes on of the United States. If, after having taken that the Constitution, and only see the law ? oath, I were to hold that he shall be a judge of " The Constitution declares that no bill of whom that Constitution says, “ Hesball hold no attainder or ex post facto law shall be passed.' civil office," I could not look upon myself as other "If, however, such a bill should be passed, and than a perjured man.

a person should be prosecuted under it, must the This great nation has spoken in the most sol. court condemn to death those victims whom the emn and authoritative manner in which its voice Constitution endeavors to preserve ?" is ever heard, and has said, Such a man shall not And the Constitution endeavors to preserve all be a judge; and am I, as an exponent of its will men from the official acts of all those whom the and power, to presume to answer back, I agree XIVth amendment disqualifies for holding civil that in theory it shall be according to your com- office. And if we are thus bound to obey the mand; but, in defiance of your express decree, Constitution, even when we might shield our he shall in fact, or, as lawyers say, de facto, be a selves by a law in violation of it, as Chief Jusjudge, and he shall exercise all the power and tice Marshall declares, with what triple bonds authority of a judge over your lives and over are we bound to obey it, when, as in, this case,

there is not only no law against it, but when we If this thing can be, then a single judge, sit- have a law aiding and enforcing our obedience, ting here in this court-room, has the power, at- enacted by the same Congress which submitted tempted in vain by armies, to nullify the Consti- this provision of the Constitution to the people, tution and set the laws enacted by the national and for the very purpose of making our duty so legislature at defiance

plain that to err would seem impossible. What says the illustrious Chief Justice Mar What is called a court de facto in this case was sball on the nature and obligation of the oath not, in any proper and legal sense, a court. Noadministered to judges ?

thing expressly prohibited by the Constitution He says: "It is apparent that the framers of was ever so called. A court is defined to be the Constitution contemplated that instrument "an incorporeal political being, which requires as a rule for the government of courts as well as for its existence the presence of the judges, or a of the legislatures.' And he asks:

competent member of them, a clerk, or prothon" Why otherwise does it direct the judges to otary,” &c. There was no judge present at that take an oath to support it? This oath certainly court, unless a man can be a judge of whom the applies in an especial manner to their conduct Constitution declares he shall not be a judge. in their official character. How immoral to im- And I certainly shall never rule that the Constipose it on thern if they were to be used as the tution of this country is impotent, effete, and not instruments, and the knowing instruments, for to be obeyed I have neither the will nor the violating what they swear to support!" courage to attempt, by a judicial opinion, to overAgain he says:

turn that Constitution which all the rebel armies Why does a judge swear to discharge bis assailed in vain, and which their cannon though duties agreeably to the Constitution of the Uni- it shook the continent, could never shake. ted States, if that Constitution forms no rule for "If," asks Chief Justice Marshall, “ an act of his government? If it is closed upon him, and the legislature repugnant to the Constitution is cannot be inspected by him; if such be the real void, does it, notwithstanding its invalidity, state of things, this is worse than solemn mock-bind the courts and oblige them to give it effect? ery. To prescribe or to take this oath become Or, in other words, ihough it be not law, does equally a crime."

it constitute a rule as operative as if it was a But it is contended that though the petitioner law?" And he remarks: - This would be to has raised a question of constitutional law, it is overthrow in fact what was established in theory; not our duty to look into the Constitution to and would seemn, at first view, an absurdity too determine it. What said Chief Justice Marshall gross to be insisted on.” to such an argument, when it was addressed to So, I ask, if the Constitution has declared that him and to the Supreme Court of the United a person disqualified in a certain manner shall States ? He replied:

hold no civil office, and a person so disqualified " The judicial power of the United States is attempts to exercise the office nf judge shall I extended to all cases arising under the Constitu- hold ihat his acts, notwithstanding his constition

tutional disqualifications, bind this court, and " Could it be the intention of those who gave oblige its judges to give them effect? And I say this power to say that in using it the Constitution further, in the language of that illustrious chief should not be looked into ? That a case arising justice: “ This would be to overthrow in fact under the Constitution should be decided without what was established in theory, and would seem examining instrument under which it arises? | to he an absurdity tvo gross be ipsisted on."

“ This is too extravagant to be maintained. In From the earliest period in the history of the some cases, then, the Constitution must be looked writ of habeas corpus it has been uniformly beld,

that one of the most conclusive grounds for dis It is asserted that legislation by Congress is charging a prisoner under that great writ was necessary to give effect to this constitutional that he was held under color of the authority of provision-that it cannot act "proprio vigore.” a court not of competent jurisdiction, although, The provision, like that which says no bill of ordinarily, the writ would not lie for a prisoner attainder or ex post facto law shall be passed, is in execution; yet it would lio for such a pris- a mere negation. It says no person disqualified, oner if the execution issued out of a court not of as this pretended judge is admitted to be, shall competent jurisdiction.

hold any office, and it no more needs additional Says the great Lord Chief Justice Wilmot, in legislation for the application of the writ of habhis masterly exposition of the law of habeas eas corpus, than legislation is needed to undercorpus, contained in a series of learned and pro- stand and apply the simplest axioms of Euclid, found answers to questions propounded to him the ten commandments, or the Lord's prayer. by the house of lords:

It is said that the character or jurisdiction of "If it appears clearly that the act for which the the court cannot be examined in a collateral proparty is committed is no crime, or that it is a ceeding. But if this is a collateral proceeding I crime, but he is committed for it by a person who should like to know what is a direct one! Wo has no jurisdiction, the court discharges.” examino pothing but the exact point at issue.

Now, what jurisdiction has & judge who is de- The petitioner alleges that he is imprisoned unclared by the Constitution incapable of being a der color of authority of an unconstitutional trijudge? Not a particle more than judge lynch, a bunal. Under this allegation, which is denied by modern committee of vigilance, or a town mob? the opposing party, certainly the question whether

If he has any jurisdiction, then we have no it is an unconstitutional tribunals is the direct and constitution. Either all his official acts are void, only issue and in no sense collateral. or the Constitution is void. The two cannot both The writ of habeas corpus, as it applies to this stand valid together; and if this court is bound case, is no collateral proceeding. It demands by blindly to consider such a court a court de facto, no indirection, but in the most posi'ire and dithen this court is not itself a court de facto, but rect manner possible, to know whether the petionly in name.

tioner is held in confinement by legal authority, The reports are full of cases in which proceed- and if at the time of the demand it can be shown ings of courts have been held to be void because that he is restrained of his liberty without lawthe courts were composed, even in part, of dis- ful, much less constitutional authority, it requires qualified magistrates.

immediate deliverance. It is the people's great In Regina vs. The Aberdale Canal Company, writ of right and liberty, and cannot be abridged the proceedings of the commissioners were held or defeated by any forms or pretences of preceto be void by the queen’s bench of England, be- dent, by any legal quibbles, technicalities, or precause a few, out of a large body of commission- sumptions, which would prevent the most speedy, ers, were disqualified by one of the provisions thorough, and rigid investigation. of the statute known as the canal act. (14 Q. To the prisoner, loaded with chains or pining B., 854.)

within the bolts and bars of the most filthy dunIn Regina vs. The Cheltenham Commission-geon, it proclaims the privilege of a hearing It ers, the proceedings of the commissioners were says to the jailor: Tyrant, oppressor, and usurp; quashed by the queen's bench, " because a ques. er, stand back; let me know for what cause and tion in the cause had been decided by a court by what authority you presume to hold this man, improperly constituted.” (12 Q. B., 467.) made in the image of his Maker, in this durance,

Indeed, it is an old maxim of law, judicum a shut from the common air and sunlight bestowed non suo judice dictum-judgment, if not pro- by almighty Goodness as the common inheritance nounced by the proper judge, is of uo effect.

of the human race. I therefore conclude, that on general and long In the name of Runnymede, of British bills of established legal principles the petitioner is en rights, of the revolutions of 1688 and 1776), of the titled to his discharge. But our duty in the case laws and Constitution of the United States, and is not left to the guidance of general principles, of the God of liberty, of law, of justice, and equalalthough according to them it would seem to ity, it demands the most thorough investigation be plain enough. But it is specifically pointed of this case, and claims that no imprisonment is out by the statute—the habeas corpus act of legal by any order, either of judge lynch, of a com1867. That act provides, that the "court or mittee of vigilance, town mob, or of any person judge shall proceed in a summary way to deter- who is not at the time fully qualified to act in so mine the facts in the case, by bearing testimony solemn a transaction as that of imprisoning a feland the arguments of the parties interested, and low man. if it shall appear that the petitioner is deprived of And clearly every man, under constitutional his or her liberty in contravention of the Consti- prohibition, is as incapable of rightful, valid, tution or laws of the United States, he or she shall Official action as if he was physically dead. forthwith be discharged and set at liberty." Moreover, it is contended that great inconveni

Now, it does appear in this case that the pris- ence will result from the enforcement of the Cononer is deprived of his liberty in contravention stitution and the laws. That argument is one of the Constitution, and it seems to me that which I think ought not to be very popular in this nothing can be plainer than that we must dis- community. Whatever inconvenience may result charge him, or violate an act of Congress and from the maintenance of the Constitntion and the our oath of office.

laws, I think the experience of the last few years Some other points in the argument in opposi- shows that much greater inconvenience results tion it may be well enough to notice. from attempting their overthrow.

as a resort to arms.

Where the words of the statute are clear, the abiding men, implicitly obeying the Constitaargument of inconvenience is only for the legis- tion of the country, and the proposition that no lature, and cannot be considered by the court. citizen, however humble, can be deprived of his " Arguments drawn from impolicy or inconve- liberty by the action of any pretended judge or nience,” says Mr. Justice Story, "ought to have other person in open defiance of a plain, palpable, little weight. The only sound principle is to clearly defined provision of that Constitution; declare ita lex scripta est—to follow and to obey." and therefore, in my judgment, the petitioner (Conflict of Laws, 17.)

should be discharged. “Where the language is clear, and where, of course, the intent is manifest," says Mr. Chief Can a Negro hold Office in Georgia ? Justice Shaw, " the court is not at liberty to be governed by considerations of inconvenience." DECISION AND OPINIONS OF THE JUSTICES OF THE (11 Pick., 407.)

SUPREME COURT OF THAT STATE. In this case the language of the statute is per Before announcing the judgment of the court, fectly clear, and the court is not at liberty to be Judge McCay said: governed by considerations of inconvenience. The case of Richard W. White, plaintiff in

The Constitution declares that "This Consti- error, against the State of Georgia, on the relatution, and the laws and treaties enacted in por- tion of Wm. J. Clements, defendant in error, suance thereof, shall be the supreme law of the comes before this court on the following state of land. It does not say that they shall be the su- facts: preme law of the land when they are not found Wm. J. Clements applied to the judge of the inconvenient. Had it so declared, the rebellion superior court of Chatham county, alleging that, could have been accomplished without so much at an election which had been held in that coun

ty for a clerk of the superior court, he and RichAs to any inconvenience which may arise, as ard W. White were the sole candidates. That is alleged, from turning criminals loose upon the Richard W. White bad got a majority of the community, an intelligent people will place the votes, but that he, Clements, had also got a good responsibility for that where it belongs, upon many votes, and that no other persons were runthose who have presumed, in open defiance of ning. The petition further stated, that Richard the Constitution, to assume functions probibited W. White had been declared elected, and had to them by that instrument, and not upon this been' commissioned, and was in the actual percourt.

formance of the duties of the office, and that This circuit, in which the former circuit judge, Richard W. White was a person of color, having Mr. Chief Justice Taney, spent almost his ex- one-eighth or more of African blood in bis veins. piring breath in defence of the habeas corpus, is That, therefore, under the laws of Georgia, he the last one in the country in which it ébould was ineligible to office; and further, that under ever be shorn of its efficacy.

the laws of Georgia, as White, the person having In that most celebrated case of James Som the majority of votes, was ineligible, he, Clemmerset, published in the English State Trials, ents, having received the next highest number of Lord Mansfield well answered the argument of votes, was entitled to the position.

He prayed inconvenience, where it was urged that to dis- the court for leave to file an information for a charge the petitioner would be to destroy the quo warranto. To that petition, of which White commercial supremacy of Great Britain. was notified, he (White) filed a demurrer. Sub

In that case Charles Stewart, a Virginia sequently, however, he withdrew the demurrer planter, had, in 1769, just a hundred years ago, to that petition, and the information issued in taken his slave Sommerset to England, where, the name of the State of Georgia. The court incited perhaps by some Quaker or abolitionist, passed an order directing the solicitor general the slave ran away and claimed his freedom. for that circuit to make out an information in The next year, when Stewart desired to sail for the name of the State, reciting, in effect, the facts America, he caused the slave to be seized and which had been recited in Clements' petition, put upon a vessel in the Thames. Lord Mans- and calling upon White to show cause why a field issued the writ of habeas corpus, and the mandamus absolute should not issue against him, case, after a second argument, the first not being depriving him of the ofice and putting Clements entirely satisfactory, was decided in favor of the in. White, at the proper time fixed by the inpetitioner. Sergeant Davy closed his masterly formation for answering, filed a demurrer to the speech in behalf of liberty in these inagnificent information, and at the same time filed an an

This air is too pure for a slave to swer denying that he was a person of color, or breathe in,"

that he had one-eighth or more of African blood Lord Mansfield, in his final disposition of the in his veins. case, on the 22d June, 1772: “Whatever incon On this the court summoned a jury for the venience therefore may follow from the decision, purpose of trying the issue. When the jury had I cannot say tb is case is allowed or approved by been sworn, the defendant below (the plaintiff the law of England; and, therefore, the black here) called up his demurrer to the information. must be discharged.”

It is stated in the record that the plaintiff, in In respectful imitation of these sublime author. the information, made no objection to taking up ities I will only add, the soil of Virginia, soaked the demurrer at that time, but consented; and with so much patriotic blood, poured out in the court heard the motion, as an independent the cause of constitutional, national sovereign- motion, before the case was submitted to the ty, should be fruitful in the products of peace, jury. The court decided that in the argument union, and fraternal concord, sustaining law-Tupon that motion—that demurrer-Clements,


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