(dissenting.) After the fullest consideration, Í am unable to arrive at the same result to which my brethren have come, and must, therefore* dissent from- their opinion. I shall content myself with merely .stating the grounds of my dissent. "■
' It cannot be pretended that the plaintiff in error is at all responsible for- the arrest of AAdró .By. 'Hopkins: and Findley:, and his first imprisonment in the provost guard. The 8.0th article of the act for the establishing rules and articles for the government of the. armies of the United States, provides, that no officer commanding a guard, or provost marshal, shall refuse to receive, or keep, any prisoner committed to his charge, by an offi-. eer belonging to- the forces of the United .States, provided the officer committing shall, at"the same time, deli ver an account, in writing, signed by himself, of the crime with which the prisoner is charged. The 81st article forbids an -officer uomménding; a guard, or provost marshal, releasing any person committed to his charge, without proper authority/ for so doing. The 65th article authorizes’any general .officer, • commanding an army, ©r colonel, Commanding a separate department, to appoint génerai courts martial.
Hopkins and Findley, it - was offered to be shown, were, at the time of Shaw’s commitment,, officers in the army of the United States j -that they committed him- to the officer of the guard, or provost marshal, and at the same time delivered to him an account in- writing, signed by them, of the crimes with which they charged Shaiv, among which was the .following,;, his “ being an -enemy’s spy, in time of war between Great Britain and the United States,” with a specification of his “ making improper and suspicious inquiries of and concerning the military post at Sachet’s Harbour, in the vicinity of the same, and for lurking in and about the said post without any apparent cause or business,’’ . ‘ ’■/
The bill of, exceptions furnishes ho evidence* direct, pre-' *269sutnptive, or probable, that the plaintiff in error was, in the least, privy to the defendant’s arrest by Hopkins and Findley, or his reception by the officer of the guard, or provost marshal. The 80th article virtually confers on any officer belonging to the forces of the United States, the power of committing, as prisoners, such as have committed offences cognizable by military law. Whether they are responsible for arresting persons not amenable to a military tribunal, is not the present question. It is enough to exempt the plaintiff in error from any liability for the acts of inferior officers, that they have the power to commit offenders for trial, and, especially, when the superior officer has not, in any manner, participated in the act of commitment. The article in question, by requiring the provost marshal to receive any prisoner, committed as the defendant in error was, presupposes the right of any officer to commit; and every officer possesses this right independently of his superior.
To maintain that the plaintiff in error is responsible for such an act, without any privity of his, is, in effect, to maintain that a commanding officer is responsible for every act of an inferior officer or soldier under his command; a doctrine too absurd to require refutation.
It appears from the bill of exceptions that the defendant was a naturalized citizen of the United States, born in Scotland, and then residing in the county of St. Lawrence, and as such, by the 2d section of the Act of Congress of the 10th of April, 1806, was not liable to be tried as a spy ; and it has been contended, that as there was a want of jurisdiction over the person of the defendant, all who were concerned in arresting and detaining him were guilty of false imprisonment.
I am free to admit, that Hopkins and Findley were trespassers. Their act was self moved and voluntary, and at their peril; but I am not prepared to admit that the provost marshal, or the plaintiff, were trespassers. As to the provost marshal, we perceive that the 80th and 81st articles of war require him, under certain conditions, which, in this instance, were complied with, to receive prisoners committed to his charge; and he is forbidden to release them without proper authority for so doing. The case of Badkin v. Powell and others, (Cowp. 476.) is expressly in point. There, an action of trespass was brought against two persons, for taking the plaintiff’s horse and cart, as well as against thepound-keeper, for receiving them: the original taking *270was admitted to be wrongful; and the .court held, that, as the pound-keeper was bound’to take and keep whatever was brought ¿o him, at the peril of the person who brings it, he was not a trespasser ; and Lord Mansfield said, “it would be.terrible were tie liable to an action for refusing to take cattle in, and were he also liable in another action for not letting them go.” As to the plaintiff in error,fit is urged, that if he be not answerable for the original imprisonment, he made himself so by remanding Shaw to the custody of the provost marshal.
It appears, by the bill of exceptions, -that Shawdtds brought before the "plaintiff in error, who was the commanding officer at ■Sackefs Harbour, when the defendant stated, that a Mr. Bun' knew him to be a citizen of the United States ,• the plaintiff in error made some excuse for not sending for Burr at that time, but said he would on the morrow, and then remanded the defendant in error to the guard; and, in about ten days thereafter, the" witness,- who testified to the above facts, saw the defendant at Adams. ' ■ ¿ ' - , 1
It is manifest, from the bill of exceptions, that the defendant iti error was brought before the. plaintiff in error, at his own request, and with a view of procuring his enlargement without a trial by a qourt martial; the act, then, of going before -the plaintiff, was for the defendant’s benefit. Had the plaintiff in error been merely passive, and refused to: interfere, it seems'to me impossible to consider him as a tort feasor. It does not appear that the plaintiff in error had the power to appoint a general court martial. A spy can be tried only by a general court martial,,and such courts can be appointed only by a general officer commanding an army, or a colonel commanding a separate department. (Art. 65.) There is no proof that the plaintiff in error was a general officer commanding an army, or a colonel commanding a separate department. Before the plaintiff in error can be implicated for not -making the appointment, the defendant in error was bound to show he was the one or the other. If, however, the plaintiff in error had the power, and neglected to exercise it, the case of Salmon v. Percival, (Cro. Car. 196.) is decisive, that cáse, and not trespass, would be the. proper and only remedy." .It comes, then, to this; had the plaintiff in error a legitimate right to discharge the defendant, who had been regularly committed for one of the highest offences, without being ■subjected to a court martial;' and was he bound, upon the mere *271allegation of the prisoner himself that he was a citizen, to exercise that power ?
I doubt very much, whether the power to discharge a person thus committed, without a trial, resides in any officer; it cannot, and ought not, to be inferred from the fact that the plaintiff in error professed his willingness to discharge the defendant, if innocent, nor from the fact that he subsequently discharged him without a trial. It is one thing for an inferior military officer to obey his superior, and it is another, and quite a distinct consideration, whether he was bound to obey. In analogy to proceedings in the civil tribunals, it is very certain, that a person committed by magistrates, charged with an offence, cannot be discharged from custody, and from the offence, without the intervention of a court, and an investigation into the offence before, at least, a grand jury. I cannot but consider the defendant’s discharge as an act of power, exercised gratuitously and mercifully ; not an act which could have been required.
I have already observed that the plaintiff in error, in ordering the defendant to be brought before him, evidently did so at the defendant’s request, and for his benefit; and it appears that the result was, to accelerate the defendant’s discharge from imprisonment : the remanding the defendant, under the circumstances of the case, amounted to no more than a declining to discharge him on his own allegation. This was not a new or distinct commitment. Had the plaintiff in error gone to the provost marshal, and heard the defendant’s allegations, and declined interfering affirmatively, there could be no pretence to charge the plaintiff as a trespasser. l’!he remanding -was, in effect, no more than a refusal, on the part of the plaintiff in error, to interfere at that time. It appears to me most unreasonable, that the defendant in error, at whose request, and for whose benefit, the act of bringing him before the plaintiff was done, shall make that act, and a declining to interfere, upon the mere naked assertion of the defendant, an independent and substantive act of imprisonment.
What is an officer, circumstanced as the plaintiff in error was, to do ? He finds a man, of whom he knows nothing, charged with an offence, in writing, and under the hands of two of ins officers, with a crime of the most heinous nature, a crime endangering a post of immense importance, a crime punished, as well by our laws as those of every nation, with death: the person thus im*272plicated catisWhiip to be discharged from imprisonment, iipoH the allegation'that he is a citizen; the imprisonment is continued, until the commanding officer becomes satisfied that the allegation of citizenship is true, and then: the prisoner is enlarged. I see no fault, no violation of law, nothing unreasonable, in this procedure. 1 To .hold, that a commanding officer is- bound to-know the fact of citizenship of every person committed by others as a spy,, and that he must instantly release, him, without an opportunity to make inquiry, and! become satisfied of the: fact, is most unreasonable, and I do not believe it to be law.
I have met with no case bearing out the court below in con? sidering the plaintiff a trespasser. I am sensible it has been de-c-ided by the Supreme Court of the United States, (3 Cranch, 337.) that it is a principle, that the decision of a court martial, in a case clearly without its jurisdiction, Cannot protect the officer who executes it. This I do . not think applies to this case, even if the position was indisputable. To give a court complete jurisdiction, there miist be júrisdiction- as well over the person as the offence, or, as applied to civil proceedings, over ¡the cause of action. In Truscott v. Carpenter and Man, (1 Lord Raym. 229.) the court held, that neither the officer nor party are bound to take notice whether the cause of action arose out of the jurisdiction of the court ; and they condemned the resolution in the case of the Marshalsea, as a hard one, arid warranted by none df the books; and say, if the cause of action arose opt .of the jurisdiction of the court, the defendant ought to pleadjt;, and, if he does not, the affair of jurisdiction is o ver, and he-shall not take advantage of it in any collateral action against the plaintiff, or the officer who executes the process. The same doctrine will.be found in Lutw. 937. 1560. and 1 Freem. 322.
It appears to me, that the case of Olict v. Bessey, (2 Sir T. Jones, 214.) has a strong bearing' on - this case. There the plaintiff had been arrested by process, without the jurisdiction of the court; he was.carried within the liberty, and delivered to the defendant, who was a gaoler of the liberty;, and the question was, whether false imprisonment lay.. ■ The court, after many arguments,, held, that the action- did not lie against the gaoler, for he had done no wrong to the party, but that only which belonged to his office, which did'not oblige him to inquire whether the first arrest was tortious or not: even if he had’ been informed of th,e tortious taking, he Ought to" have detained the *273prisoner, being delivered to him with a good warrant for the arrest. The plaintiff here, is not strictly in the same situation as the provost marshal, not personally having the custody of the defendant. He had, however, a supervisory power over him; and what would justify the provost marshal for detaining the defendant, would justify him. I again repeat it, the plaintiff in error did not make the arrest, and he was under ño obligation to discharge the defendant in error, without a trial by a court martial. The commitment by Hopkins and Findley, was a warrant both to the plaintiff in error and the keeper of the provost guard, for his detention. It would, in my judgment, be most irrational and mischievous, that an officer, in the situation of the plaintiff in error, should be bound first to try, and, at his peril, exercise his judgment on the truth of the charge. The principle contended for pushes the absurdity further: the plaintiff in error is not even allowed to inquire Whether the defendant in error was exempted from a trial as a spy, or not, in consequence of his alleged citizenship. I cannot yield my assent to doctrines so unjust and unreasonable ; and am, therefore, of opinion, that the judgment below ought to be reversed, because the court did not allow the evidence offered to be a full justification.
Platt, J., not having heard the argument of the cause, gave no opinion.
Judgment affirmed.