under color of a sentence pronounced against | him by a person pretending to be a judge of the circuit court of Rockbridge county, in the State of Virginia; that the said pretended judge, having previously taken an oath as a member of the State legislature to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; whereas the Constitution of the United States (amendments, Art. XIV) provides that no such person as aforesaid shall hold any civil office under any State; and, consequently, the said pretended judge had no jurisdiction over the person or alleged offence of the petitioner, and all his proceedings in the case were invalid and absolutely void.

Two questions are before the court. They are both of a legal, not of a political character, and I propose to consider them strictly upon legal principles and judicial authority. They are

1. Did the writ properly issue in this case? 2. Ought the petitioner, on the consideration of the whole case, to be discharged?

1st. Did the writ properly issue?

The act of Congress of February 5, 1867, provides as follows:

"Be it enacted, &c., &c., That the several courts of the United States and the several justices and judges of said courts within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the Constitution and laws of the United States."

The petition, in form, complied with the requirements of the statute; and it did not appear from the petition itself that the party is not deprived of his liberty in contravention of the Constitution of the United States. Therefore the obligation would seem to have been imperative on the judge to whom the application was made to issue the writ. The language of the statute is sufficiently plain, even without the aid of judicial construction But it has had judicial construction by the highest_authority in the land. In McCardle's case the Supreme Court of the United States, in an opinion delivered by its learned Chief Justice, with his usual force and elegance of expression, said:

"This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the national Constitution, treaties, or laws. It is impossible to widen this jurisdiction."

F

A judge capable of understanding the plainest English language could entertain no doubt, under the statute, of his duty to issue the writ, on a petition such as was presented in this case; and if any doubt could have arisen under the statute standing alone, this decision of the Supreme Court of the United States would have removed it.

2d. Ought the petitioner, on the return, answer, and evidence, to be discharged?

The XIVth amendment to the Constitution provides:

"SEC. 3. No person shall be a senator or representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have been engaged in insurrection or rebellion against the same, or given aid or comfort to

the enemies thereof."

The fact that the person who pronounced the sentence was disqualified, under the XIVth amendment of the Constitution of the United States, is not controverted, and I believe to be incontrovertible. But it is argued that the court was a court de facto, and that the disqualification of the judge cannot be availed of in a collateral proceeding.

Let us examine these two points:

First. That it was a court de facto. It is hardly worth our while to be frightened, at this day, by a little law Latin. De facto means of or from the fact, or, more properly, as used here, in fact; that is to say, the objection urged is, that this was a court in fact, if not in law.

Now, let us ask what makes it a court in fact? Is that a court in fact which the Constitution of the United States says shall not be a court? Then the Constitution is a dead letter-a mat to wipe our feet upon-not a shield to protect our breasts. There can be no such thing, in time of peace, when the national authority is everywhere re-established, as a court prohibited by the plain letter of the Constitution, (and a court composed of such judges is so prohibited,) and yet having power to deprive citizens of their life or their liberty. Such a proposition seems to me the most uniaintainable of absurdities on its very face.

If the doctrine here urged is correct, and is the doctrine on which our practice is to be based, it might be advantageously incorporated into this XIVth amendment and made a part of it. We will see how this amendment would then read. I know no better way to exhibit the untenableness of the proposition than thus to put it into the shape of that organic law which, it is contended, it ought to control.

"No person shall hold any civil office" in theory, though he may in fact, and as a rebel pretended judge may sentence loyal men to be imprisoned and to be hanged, "who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have

thereof."

How would such a provision as that read? And yet, if it is to be the law administered by the court, it might as well be in the Constitution or on the statute-book.

As a judge of one of the courts of the United States I am sworn to support the Constitution of the United States. If, after having taken that oath, I were to hold that he shall be a judge of whom that Constitution says, " He shall hold no civil office," I could not look upon myself as other than a perjured man.

This great nation has spoken in the most solemn and authoritative manner in which its voice is ever heard, and has said, Such a man shall not be a judge; and am I, as an exponent of its will and power, to presume to answer back, I agree that in theory it shall be according to your command; but, in defiance of your express decree, he shall in fact, or, as lawyers say, de facto, be a judge, and he shall exercise all the power and authority of a judge over your lives and over your liberties

If this thing can be, then a single judge, sitting here in this court-room, has the power, attempted in vain by armies, to nullify the Constitution and set the laws enacted by the national legislature at defiance

What says the illustrious Chief Justice Marshall on the nature and obligation of the oath administered to judges?

He says: "It is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as of the legislatures.' And he asks:

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"

Again he says:

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Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him; if such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath become equally a crime.

But it is contended that though the petitioner has raised a question of constitutional law, it is not our duty to look into the Constitution to determine it. What said Chief Justice Marshall to such an argument, when it was addressed to him and to the Supreme Court of the United States? He replied:

The judicial power of the United States is extended to all cases arising under the Constitu

tion.

Could it be the intention of those who gave this power to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining that instrument under which it arises? "This is too extravagant to be maintained. In some cases, then, the Constitution must be looked

*

And if they can open it at all, what part of it are they forbidden to read or to obey?"** "It is declared that no 'tax or duty shall be laid on articles exported from any State.'

Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?

"The Constitution declares that no bill of attainder or ex post facto law shall be passed.'

'If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?"

And the Constitution endeavors to preserve all men from the official acts of all those whom the XIVth amendment disqualifies for holding civil office. And if we are thus bound to obey the Constitution even when we might shield ourselves by a law in violation of it, as Chief Justice Marshall declares, with what triple bonds are we bound to obey it, when, as in this case, there is not only no law against it, but when we have a law aiding and enforcing our obedience, enacted by the same Congress which submitted this provision of the Constitution to the people, and for the very purpose of making our duty so plain that to err would seem impossible.

What is called a court de facto in this case was not, in any proper and legal sense, a court. Nothing expressly prohibited by the Constitution was ever so called. A court is defined to be "an incorporeal political being, which requires for its existence the presence of the judges, or a competent member of them, a clerk, or prothonotary," &c. There was no judge present at that court, unless a man can be a judge of whom the Constitution declares he shall not be a judge. And I certainly shall never rule that the Constitution of this country is impotent, effete, and not to be obeyed I have neither the will nor the courage to attempt, by a judicial opinion, to overturn that Constitution which all the rebel armies assailed in vain, and which their cannon though it shook the continent, could never shake.

"If," asks Chief Justice Marshall, "an act of the legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?" And he remarks: "This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on."

So, I ask, if the Constitution has declared that a person disqualified in a certain manner shall hold no civil office, and a person so disqualified attempts to exercise the office of judge shall I hold that his acts, notwithstanding his constitutional disqualifications, bind this court, and oblige its judges to give them effect? And I say further, in the language of that illustrious chief justice: "This would be to overthrow in fact what was established in theory, and would seem to be an absurdity too gross to be insisted on."

From the earliest period in the history of the writ of habeas corpus it has been uniformly held,

Where the words of the statute are clear, the | argument of inconvenience is only for the legislature, and cannot be considered by the court. Arguments drawn from impolicy or inconvenience," says Mr. Justice Story, "ought to have little weight. The only sound principle is to declare ita lex scripta est-to follow and to obey." (Conflict of Laws, 17.)

Where the language is clear, and where, of course, the intent is manifest," says Mr. Chief Justice Shaw," the court is not at liberty to be governed by considerations of inconvenience." (11 Pick., 407.)

In this case the language of the statute is perfectly clear, and the court is not at liberty to be governed by considerations of inconvenience.

The Constitution declares that "This Constitution, and the laws and treaties enacted in pursuance thereof, shall be the supreme law of the land. It does not say that they shall be the supreme law of the land when they are not found inconvenient. Had it so declared, the rebellion could have been accomplished without so much

as a resort to arms.

As to any inconvenience which may arise, as is alleged, from turning criminals loose upon the community, an intelligent people will place the responsibility for that where it belongs, upon those who have presumed, in open defiance of the Constitution, to assume functions prohibited to them by that instrument, and not upon this

court.

This circuit, in which the former circuit judge, Mr. Chief Justice Taney, spent almost his expiring breath in defence of the habeas corpus, is the last one in the country in which it should ever be shorn of its efficacy.

In that most celebrated case of James Som merset, published in the English State Trials, Lord Mansfield well answered the argument of inconvenience, where it was urged that to discharge the petitioner would be to destroy the commercial supremacy of Great Britain.

In that case Charles Stewart, a Virginia planter, had, in 1769, just a hundred years ago, taken his slave Sommerset to England, where, incited perhaps by some Quaker or abolitionist, the slave ran away and claimed his freedom. The next year, when Stewart desired to sail for America, he caused the slave to be seized and put upon a vessel in the Thames. Lord Mansfield issued the writ of habeas corpus, and the case, after a second argument, the first not being entirely satisfactory, was decided in favor of the petitioner. Sergeant Davy closed his masterly speech in behalf of liberty in these magnificent worus: "This air is too pure for a slave to breathe in."

Lord Mansfield, in his final disposition of the case, on the 22d June, 1772: "Whatever inconvenience therefore may follow from the decision, I cannot say this case is allowed or approved by the law of England; and, therefore, the black must be discharged."

abiding men, implicitly obeying the Constitution of the country, and the proposition that no citizen, however humble, can be deprived of his liberty by the action of any pretended judge or other person in open defiance of a plain, palpable, clearly defined provision of that Constitution; and therefore, in my judgment, the petitioner should be discharged.

Can a Negro hold Office in Georgia?

DECISION AND OPINIONS OF THE JUSTICES OF THE SUPREME COURT OF THAT STATE.

Before announcing the judgment of the court, Judge McCay said:

The case of Richard W. White, plaintiff in error, against the State of Georgia, on the relation of Wm. J. Clements, defendant in error, comes before this court on the following state of facts:

Wm. J. Clements applied to the judge of the superior court of Chatham county, alleging that, at an election which had been held in that county for a clerk of the superior court, he and Richard W. White were the sole candidates. That Richard W. White had got a majority of the votes, but that he, Clements, had also got a good many votes, and that no other persons were running. The petition further stated, that Richard W. White had been declared elected, and had been' commissioned, and was in the actual performance of the duties of the office, and that Richard W. White was a person of color, having one-eighth or more of African blood in his veins. That, therefore, under the laws of Georgia, he was ineligible to office; and further, that under the laws of Georgia, as White, the person having the majority of votes, was ineligible, he, Clements, having received the next highest number of votes, was entitled to the position. He prayed the court for leave to file an information for a quo warranto. To that petition, of which White was notified, he (White) filed a demurrer. Subsequently, however, he withdrew the demurrer to that petition, and the information issued in the name of the State of Georgia. The court passed an order directing the solicitor general for that circuit to make out an information in the name of the State, reciting, in effect, the facts which had been recited in Clements' petition, and calling upon White to show cause why a mandamus absolute should not issue against him, depriving him of the office and putting Clements in. White, at the proper time fixed by the information for answering, filed a demurrer to the information, and at the same time filed an answer denying that he was a person of color, or that he had one-eighth or more of African blood in his veins.