Smith v. Shaw

12 Johns. 257

Opinions

Thompson, Ch. J.,

delivered the opinion of the CourL , This ease comes before tlnr court upon a writ of error to the common pleas of Jefferson county, upon a bill of exceptions taken at the trial, for excluding the testimony offered on the part of the defendant below. The action was for false imprisonment; and the defendant, under the general issue, gave notice of a justification; to support which, upon the trial, he offered to prove, that the plaintiff was committed to the provost guard by Hopkins and Findley, who were officers of the army of the United States, charging him, the plaintiff, in writing, with having excited mutiny among the citizens of the United States, violating his parole, as a prisoner, and engaging in an illicit trade, and furnishing the enemy with necessaries from the United States, and being an enemy’s spy in time of war between Great Britain and the United States. It appeared in evidence, on the part of the plaintiff below, that he was a naturalized citizen of the United States, and was arrested by Findley and Hopkins, at a place called Adams, about fifteen miles distant from Backet's Harbour, where the army was stationed. Under these circumstances, the question presented to the court below was, whether the evidence offered on the part of the defendant, would amount to a justification. It was overruled as a justification, but admitted, or offered to be received, in mitigation of damages.

There can be no doubt but that the rights and the responsibility of the defendant must be governed by the rules of law, applicable to courts of special and limited jurisdiction. And it is a general rule, that where such a court has neither jurisdiction of the subject matter, nor of the person, every thing done is absolutely void, and all are trespassers who are concerned in the proceedings. None of the offences charged against Shan were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason ; but could not be punished under martial law, as a spy. There was, therefore, a want of jurisdiction, either of the person or of the subject matter, as to all the offences alleged against the plaintiff. There; can be no doubt but that Hopkins and Findley were trespassers,; and the defendant’s liability must depend upon the fact how far he has ratified and affirmed their acts, or has himself undertaken to exercise any restraint over the plaintiff. Had he barely refused to discharge him until tried by a court martial, I should question' Whether he could be made a trespasser by such refusal, But he went further, and, in some measure, affirmed the arrest; for, on application being made to him in behalf of the plaintiff, he said, he had such a man in the provost guard, and that he should not release him,, until he saw Hopkins ; that he knew the martial law,, and must be,governed by it; thus claiming the right to hold.and try him by a court martial. Nor did the defendant stop here: he undertook to act affirmatively, and ordered the plaintiff to be-brought before him, , and after making some examination and inquiries, remanded him to the custody of the provosf marshal. This was a direct and positive exercise of authority and restraint.' ,

The damages recovered against, the defendant appear to me to be very -high ; but this is á question, which cannot be taken into consideration by, this, court. The judgment must - be affirmed, unless the evidence offered by the. defend, ant could -have afforded a completé justification. The conduct, of the defendant in this case, does not appear to- have been harsh and oppressive. But it is the principle involved in it, which renders the question important. If the defendant was-justifiable in doing what he did, every citizen of the United ¡States would, ip time of war, be equally exposed to a like exercise of military power and authority: It was not pretended pn the argument, that if the plaintiff was a citizen he was amenable to a court martial for any of the offences alleged against him. And the defendant could- certainly have no legal right to detain him to try that question before a court martial. In this respect, lie acted at his peril. Suppose a habeas corpus had been issued from this court to bring up the plaintiff, would it have been a sufficient return by the defendant, that he detained him for the purpose of trying by a court martial whether he was a citizen or not. The defendant does, not stand in the situ* ation of a subordinate officer, bound to obey the command of Ills superiors. He was the commanding officer at Sachet's Harbour, and had a right, without doubt, to discharge the plaintiff. At' all events, Hopkins and Findley had no authority to compel him to detain him. Had the suit.been against the provost marshal, more difficulty would have been presented. For, under the rules and articles of war, he was bound to receive him; and he would -have exposed himself to punishment had he voluntarily released him. (1 Sess. 9 Cong. ch. 20. Ar. 30, 81.) The situation of the provost marshal might be considered somewhat analogous to that of the pound-keeper in Badkin v. Powell, (Cowp. 476.) where it Was held, that he was not a trespasser merely for receiving a distress, though the original taking was tortious, because he was bound to take and keep whatever was brought to him» But the defendant cannot be protected under this principle. He had, as I have before shown, made himself the party detaining the plaintiff. The general rule which appears to be laid down in the books is, that where the subject matter of any suit is not within the jurisdiction of the court applied to for redress, every thing done is absolutely void, and the officer, as well as the party, becomes a trespasser. But when the subject matter is within the jurisdiction of the court, and the want of jurisdiction is to the person or place* then the officer is excused, unless the want of jurisdiction appears on the process. (10 Coke, 76. Hard. 480.) But in the case of Wise v. Withers, (3 Cranch, 331.) the liability, even of the officer, was extended by the supreme court of the United States beyond what this rule would seem to warrant. It was there held, that trespass lies against a collector of militia fines* who distrained for a fine imposed by a court martial upon a person not liable to be enrolled $ the court martial having no jurisdiction in such cases. The court said, it is a settled principle that the decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who acts under it; that the court and officers are all trespassers. It is unnecessary, in the present case, to press the principle so far, as the defendant cannot, in any manner, be considered as standing-in the light of a ministerial officer. That a want of jurisdiction of the person renders the proceedings void, and makes the party procuring them a trespasser, is well settled. As in the case of Perkin v. Proctor, (2 Wils. 382.) where it was held, that trespass lies against the assignees under a commission of bankruptcy, sued out against a person not liable to be declared a bankrupt. And in the case of Mostyn v. Fabrigas, (Cowp. 175.) Lord Mansfield, in giving the opinion of the court, refers to a suit brought by a carpenter in the train of artillery, against Governor Sabine, who had barely confirmed the sentence of a court martial, by which the plaintiff had been tried and sentenced to be whipped, and the governor was held responsible, in an action of trespass, because the plaintiff mas not liable to martial Ian. Although there is; no reason to believe, but. that: the defendant acted in good.faith, and under an honest impression,..that he.- was'discharging his duty, yet we think he,acted. without- authority*- and that the matter offered in evidence would not have afforded a justification. .The judgment of the court below must therefore be affirmed.