In re Spangler

Martin Ch. J.:

Were it- not for the importance of the jurisdictional question presented in this case, and the imperative necessity for its settlement at this time, I should content myself with deciding that, upon the undisputed facts of this case, there is no error in the proceedings of the Draft Commissioner, and that Spangler must be re-delivered to his custody. His name was fully given and properly spelled upon the enrollment, and the trifling mistake of dropping out a letter from his name upon the ballot, when the person was clearly designated, could not render the draft invalid.

But I am not willing to turn the case oif upon this point. The main and all important question is one of jurisdiction, and it is this which I shall consider. The solution of this question depends, in my view, entirely upon that of whether Spangler is held by the Draft Commissioner under Federal or state authority; for, if under the former, we have no jurisdiction, while if under the latter, we have.

I do not concede that the return of the Commissioner that he holds Spangler under or by virtue of the authority of the United States, is of itself sufficient to deprive us of jurisdiction to inquire into the cause of his detention— for this is a traversable fact — but I do concede, that if so held, we have no jurisdiction to inquire further as to the legality of such detention, but that the whole subject is exclusively within that of the courts of the United States.

The first question, therefore, is, under what authority is he held?

The Constitution of the United States, Art. 1, sec. 8, empowers Congress to raise and support armies, to provide for calling forth the militia to execute the laws of the' Union, to suppress insurrection, and to repel invasion, and to provide for organizing, arming, and disciplining the same, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers,1 and the authority of training the militia according to the discipline prescribed by Congress, and to make all laws which shall be necessary and proper for carrying such powers into execution.

The Constitution itself was framed and adopted for the purposes, among others, of ensuring domestic tranquillity, and promoting the general welfare of the people of the United States; and the power of regulating the militia, and of commanding its services in times of insurrection, are natural incidents to the duty of watching over the internal peace of the Union. (See Federalist, No. 29). This whole power was conferred upon Congress, reserving only to the states the appointment of the officers, and the training of the militia according to the discipline prescribed by Congress. In the exercise of this power, Congress, by the act of July 17th, 1862 (Ch. 201), enacted that the President should call forth the militia, and if by reason of defects in existing laws, or in the execution of them, in the several states, or in any of them, it should be found necessary to provide for enrolling the militia and otherwise putting the act into execution, he was authorized in such case to make all necessary rules and regulations for such purpose — the power of calling forth the militia already being reposed in him by existing laws. By virtue of this authority, upon the 4th of August, 1862, the President ordered a draft of. 300,000 militia, to be immediately called into the service of the United States, and directed the Secretary of "War to assign the quotas to the States» and establish regulations for the draft, &o.

Such assignments were accordingly made, and upon the 9th of August orders were iss’ued from the War Department, requiring the Governors of the respective states to proceed forthwith to furnish their respective quotas, directing an enrollment to be made of all able-bodied citizens between the ages of 18 and 45, and providing and ordering that where no provision was made by law in any state for carrying into effect the draft thereby ordered, or when such provisions were in any manner defective, the draft should be conducted in a manner specified in such order. One provision of which requires the Governor to appoint a Draft Commissioner for each county, fixing his compensation, and giving minute directions to him as to the discharge of his duties. The Governor of this State, finding that an imperfect military census had been taken, and that there were defects in our state laws, that inequality would occur in their execution, observed, in ordering the draft in question, - the law of Congress and the orders of the War Department, and did not proceed under the state law. In this he exercised an executive discretion, with which we cannot interfere, and which, I think, was wise and proper. As he was not executing the laws of Michigan, he was, of necessity, obeying the laws of Congress and the orders of the President. The Draft Commissioner appointed by him, was consequently a federal; and not a state officer, and the draft was made and the relator is now held under federal authority. The only remaining question is that of the jurisdiction of this Court, and of state officers, to inquire into the regularity of the draft, and the legality of Spangler’s detention. Upon this question I think there can be no doubt that we have none. The Federal Government and the state governments exist as independently as the governments of the several states. Each acting within its sphere is foreign to the other, and independent; and this principle extends to the jurisdiction of the courts of each. Except in the case of the appellate jurisdiction conferred upon the Supreme Court of the United States, the courts have jurisdiction only-commensurate with the law of the state or nation under which they severally exist. An abuse of the authority of the United States, although committed by a citizen of this State, is an offense (says Chan. Kent) against the United States, and exclusively cognizable in their courts. If this be so, the exercise of power under such authority is equally under such exclusive jurisdiction. The views of Chief Justice Taney in Ableman v. Booth, 21 How. 506, are so apposite and exhaustive of this subject, and meet so fully with my concurrence, that it is hardly possible for me to do more than to refer to them as containing the whole law upon the subject. Questions of this kind, as he says, must always depend upon the Constitution and laws of the United States, and not of a state. The Constitution was not framed merely to guard the states against danger from foreign nations, but mainly to secure union and harmony at home: for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the states then possessed should be ceded to the General Government, and that in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a state or from state authorities.

The writ must be dismissed for want of jurisdiction.

Manning J. :

The first question that meets us in this case is one of jurisdiction — a question, it must be admitted, of more than ordinary importance, as it- involves a construction of the Constitution of the United States as to the power of the federal and state courts, in the use of the writ of habeas corpus^ to discharge from imprisonment persons illegally deprived of their liberty.

We have two governments — a state government and a federal government. Each of these governments is supreme within its appropriate sphere. The line that separates the powers of the two is not at all times easy to trace. Some parts of it are well defined, while other parts of it are more obscure, and difficult to follow. This is owing, in part, at least, to the double relation we sustain as citizens of both governments, subject to the laws and regulations of both, and owing allegiance to both.

According to the theory of our government, the sovereign power is in the people. And viewing that part of it delegated by them for governmental purposes as a whole, the two governments together make that whole. In this sense neither is a whole in itself, any more than the legislative, executive or judicial part of the government is the whole government. Each of these departments is but a part of the government, acting independently of the others, and at the same time correlatively with them; and so closely are they bound together as a whole, that it is not at all times an easy task to find where the independent action of one of them ceases and that of another begins. It is not, therefore, at all surprising that a like difficulty should sometimes be experienced in determining between the powers of the federal and state governments, as a whole; — in fixing the precise point where the functions of one cease to act, and those of the other begin to act. The power to act in a given case we may know exists in one of the two, but in which, may not be so easy of solution; and yet it may be necessary to the harmonious action of the 'sovereign power delegated to them that it should be solved. For, without the independent, harmonious and correlative action of both, we can hardly expect to gather the golden fruit anticipated, by our fathers in the formation of our somewhat complicated, and yet simple form of government.

The two governments, in the sense already stated, are only one whole. Without either we should have but half a government; a fact too frequently overlooked, and we fear too little regarded by us, when we permit ourselves to become- the partizans of either, in opposition to the other. We should think a man very unreasonable who should attempt to increase his powers of locomotion by strengthening one of his limbs at. the expense of the other. This shows us the great care that should always be kept in view by each government, while determining its own powers, not to encroach on the powers of the other.

Neither is supreme, in the sense that it has power to dictate to or control the other, when acting in its appropriate sphere. Each is supreme within its own sphere. Neither is supreme within the sphere of the other. A common constituency supports, upholds, and gives vitality to both. To the Federal Government belong all questions outside of the states that pertain to us as a nation, and such powers within the states as are given to it by the Federal Constitution, in express terms or by clear implication; while all local and municipal powers not ceded to the Federal Government, belong to the states. Each has its writ of habeas corpus. Each has power under its constitution to suspend the writ on the happening of a certain contingency. The object of the writ is the same in both governments. It is to release from imprisonment, within its judicial limits, persons entitled to its protection who are deprived of their liberty without warrant of law.

The territory of a state is common to both governments-The territorial jurisdiction of both governments, therefore, so far as it respects the State, is the same. But is the judicial jurisdiction incident to the writ of habeas corpus the same ? We think not. Otherwise the powers of the federal and state courts, as it regards this court, are identical; and if they have a common concurrent jurisdiction, the power given to either government by its Constitution, to suspend the writ, for all practical purposes is a nullity, as neither can suspend the writ of the other, and as the only effect of a suspension by one, would be the same as that of abolishing the jurisdiction of one of two writs having a common concurrent jurisdiction, viz: to drive the suitors of both courts into the one whose jurisdiction was left unimpaired. Besides, if both governments have a common jurisdiction in the use of. this writ, we have two independent governments, neither responsible to the other, acting upon the same subject matter. One may imprison, and the other release from such imprisonment, for the former to renew the imprisonment, and the latter again set free, until the stronger overpowers the weaker.

Any construction of the Federal Constitution that leads to such results, must necessarily be erroneous. We can not suppose the people, in adopting the Federal Constitution, intended to make such a distribution of the sovereign power delegated by them as to place one part of it in antagonism to another.

There must, therefore, from the very nature of our institutions, be a line separating the powers of the two governments, on this, as Well as .on every other subject.

The question then arises, where is that line, and what constitutes it? There can be but one. And that apjmars so clear to my mind (it may appear differently to others) that I almost wonder how any other should ever have been thought of. It is this: that the state courts have the right, and it is their duty, in all cases authorized by the laws of the State, to issue the writ of habeas corpus to inquire into the legality of the imprisonment of any person deprived of his liberty within the State, and to discharge him therefrom if wrongfully imprisoned, unless he is imprisoned or restrained of his liberty by the Federal Government.

By this I mean, not, by one acting in his own right, but by one acting for and in right of, and under authority from the Federal Government; or claiming in good faith and under color of such authority to be so acting. I use these last words for the reason that good faith and color of authority are necessary to prevent imposition, and to oust the state jurisdiction. These being judicially ascertained, the state court can go no further. It can not inquire into the validity of the authority, or the legality of the detention under it; for this would be taking jurisdiction of the whole question.

The state courts have a right to inquire whether the person imprisoned is within the state jurisdiction, which he must be if in the State, unless he is deprived of his liberty by authority of the Federal Government; in which case he is not, so far as it regards his imprisonment and the state writ of habeas corpus. In the language of Chief Justice Taney, in the cases of Ableman v. Booth, and the United States v. Booth, 21 How. 523, “He is then within the dominion and exclusive jurisdiction of the United States.” He is, as it regards the state habeas corpus, as completely beyond its reach for the purpose of releasing him, as he would be were he not within the State. Up to the point of imprisonment by the Federal Government the state habeas corpus has jurisdiction. It then ceases and the jurisdiction of the federal habeas corpus begins. In all cases of imprisonment, other than by the Federal Government, the State writ of habeas corpus has exclusive jurisdiction. In all cases of imprisonment by or under authority of the Federal Government, the federal writ of habeas corpus has exclusive jurisdiction.

Instances have occurred in which the writ of each government has been sent across this line into the dominions of the other. Such irregularities are calculated to produce irritation, and bring on an unseemly conflict between the state and federal courts, and thereby disturb the barmonious action of the two governments. As we have already said, any construction of the Federal Constitution that leads to such results, must be untenable.

From the return to the writ, and the papers attached to and .forming a part of the return, it appears that Spangler is held by virtue of a draft made under the laws of Congress and orders of the War Department of the United States. The fact that the Governor, as appears by his proclamation, thought proper to act in ordering the draft (and we do not question his right) under the laws of Congress and orders of the War Department, instead of the laws of the State, does not change the power under which the draft was made, and Spangler is held by the Draft Commissioner. The State Executive is the conduit through which the power passes that holds the prisoner; and for the true character of that power we must look to its source, and not to the channel through which it flows. If one of our Sheriffs should be deputed by the United States Marshal to serve a writ from the federal court, this Court would have no authority to entertain a motion to set aside the service, because it was made by the Sheriff. And it would not alter the case if the State should be interested in the prosecution of the suit in which the service was made.

The writ and all further proceedings under it, I think, should be dismissed for want of jurisdiction.