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Vol. II.)

BROWN v. UNITED STATES.

[No. 10.

mind, it is clear that the words “judicial proceeding," as here used, refer solely to judicial proceedings under the laws of the state and its own tribunals of justice; no other meaning can be assigned to them. To extend their signification beyond this, would be an endeavor to empower state courts to invade the judicial authority of a distinct and separate government, and to punish persons for offences committed by them against the laws of another sovereign. The People v. Kelley, supra. The provision in the Code, defining the offence and naming the punishment, is a general law of the state. Now, keeping in view the complex character of our government — the dual relation which the individual states and the nation bear to each other - surely the texture of any argument must prove to be too frail, which would attempt to uphold the proposition that a crime committed in a judicial proceeding before an officer of the United States is a transgression of the criminal laws of a state. And, as not impertinent to what has been remarked, it may be asserted, with entire confidence in its correctness, that no justice or judge of a court of the United States, nor a commissioner of the circuit court of the United States, can, as such officer, administer an oath for state purposes, or issue a process to arrest a party for a violation of state laws, or inquire into his guilt or innocence. Nor do these familiar acts of Congress, which have deputed state chancellors, judges, and other magistrates to administer oaths, take acknowledgments, &c., in certain specified cases, in anywise affect what has just been said in regard to federal officers as such.

Pausing to observe the facts developed here, and the principles of law which arise from them, it may now be inquired whether proceeding by habeas corpus, even under the provisions of the Act of February 5, 1867,- which empowers the several federal courts, and either of the justices or judges of such courts, to award the writ in all cases where a party is in custody in violation of the Constitution, or of any law of the United States, - is a suitable and legal remedy to test the validity of the imprisonment of the petitioner, and to release him, if restrained of his liberty in contravention of the Constitution or laws of the United States. It will not be questioned that, upon a cursory glance at this cause, which is a civil suit, although it be before a judge instead of a court (Ex parte Milligan, 4 Wall. 1; and see Revised Stats. sect. 763),

even the legal mind might be impressed with a doubt as to the appropriateness and legal soundness of this summary interposition. For (it may be said) thus to attempt to review a final judgment of a state tribunal of the highest original jurisdiction in civil and criminal causes, by a mode of procedure not conformable to the ancient and regular course heretofore used in the administration of justice between state courts and those of the Union, would be to authorize a federal judge to employ this writ as if it were a writ of error from a superior to an inferior tribunal. Such views may be plausible, but they do not convince; for it is obvious from the language and spirit of the act that it was not in the mind of Congress to give it the effect assumed,- to have done so would have been to clothe a judge of a federal court with a power hitherto unheard of in national legislation. If, however, it be a legal fact that the superior court of Randolph County had jurisdiction of the offence and the offender, although the course of the court may have been irregular, and

a

Vol. II.]

BROWN v. UNITED STATES.

(No. 10.

the conviction and judgment erroneous, the errors could not be corrected by a federal judge in a proceeding in habeas corpus, or, by such officer, in any other way known to our jurisprudence.

But if the state court did not have jurisdiction of the case, its judgment is utterly void, and the petitioner is restrained of his liberty in violation of the Constitution, and the Act of 1867 affords a proper and legal remedy to administer relief. If he committed the crime, as charged by the state in the indictment, the act was done within the authority and exclusive jurisdiction of the national courts; and as they are the sole tribunals that could try him, so they alone could punish him. It follows, necessarily, from what has now been stated, that every person who infringes the criminal or penal laws of a particular government, can be tried and punished by that government only. And it is not too strong an expression to assert that it is a fundamental right of every citizen of, or person commorant within, the United States, to be tried by the tribunals of justice of that sovereign power whose criminal code he has transgressed; and the complement of this rule or axiom is, immunity or exemption from trial or punishment for that offence by any other government or sovereignty. The disregarding of this immunity has deprived the petitioner of his liberty in contravention of the “law of the land;” he was proceded

; against and condemned without "due process of law." The fifth article

” of amendment of the Constitution declares, among other immunities from arbitrary oppression, that no “person shall be deprived of life, liberty, or property, without due process of law.” This bulwark against invasion from the general government is extended by the fourteenth article of amendment, which forbids “any state” to “deprive any person of life,

, liberty, or property, without due process of law." Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235, in speaking of the phrase “law of the land,” which means the same as “due process of law” (Cooley on Constitutional Limitations 353), said that these words from Magna Charta were “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principle of private rights and distributive justice ;” an exposition which has received the unqualified approval of a jurist of the highest eminence. Ib. 355.

As collaterally illustrative of the constitutional question as just presented, the fifteenth chapter of title thirteen of the Revised Statutes, passim, and sections 1778 to 1785 of Story on the Constitution, may be referred to.

As the crime is alleged to have been committed before a United States circuit court commissioner, at a place within the Southern Judicial District of this state, I am of the decided opinion that the federal courts for that district are the only tribunals that have cognizance of the offence and jurisdiction to try the party offending.

There is another provision in the Constitution directly pertinent to the question involved in this investigation, and which may be treated either as a distinct proposition or as a corollary to those already invoked. A little more than a year anterior to the passage of the amendatory Habeas Corpus Act of 1867, the thirteenth article of amendment of the Constitution was ratified. It ordains that “neither slavery nor involuntary servi

Vol. II.)

BROWX v. UNITED STATES.

[No. 10.

tude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Mr. Justice Miller, in delivering the opinion of the court in the Slaughter-house Cases, 16 Wall. 72, said: “Undoubtedly while negro slavery alone was in the mind of the Congress which enacted the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the states which properly and necessarily fall within the protection of these articles [thirteenth, fourteenth, and fifteenth], that protection will apply, though the party interested may not be of African descent."

If, as already observed, the United States courts are the only tribunals that have jurisdiction over the offence and power to punish the offender, then the petitioner has not had a trial under the provisions of the Constitution; and it follows from his imprisonment under sentence of the superior court of Randolph County, that he is held in “involuntary servitude, - a condition inhibited by the thirteenth article, “ except as a punishment for crime whereof the party shall have been duly convicted.”

Throughout this investigation, the questions in controversy have been considered without any regard whatever to the fact that the petitioner is of the negro race. The proceedings came before me under the first section of the amendatory Habeas Corpus Act of 1867. And where, in a case like this, -one, if I am not in error, that is fairly included, as well within the scope and true meaning of the language used by Mr. Justice Miller, speaking of the late amendments in the sentence last quoted, as within other provisions of the Constitution which have been applied to the principles pervading this case, — the original or secured privileges and immunities of any person within the United States, or any place subject to their jurisdiction, are invaded, distinctions in races become incommensurable.

The petitioner is deprived of his liberty in contravention of the Constitution and laws of the United States, but I decline to discharge him absolutely, for the following causes: I am informed by the United States attorney that an accusation stands against Bridges for the identical crime charged in the above indictment, and that this accusation can be investigated by the grand jury of the United States circuit court for the Southern District of Georgia, which will be empanelled within a few days; and Attorney General Hammond, of counsel for respondent, having made application for an appeal to the circuit court, therefore, Dock Bridges will be recommitted by the marshal to the jail of Fulton County, and there remain until further order. Matter of Mason, 8 Mich. 70; Matter of Ring, 28 Cal. 247; Ex parte Gibson, 31 Ib. 610; Hurd. on Habeas Corpus, 416 et seq.; Revised Statutes, sect. 763. Ordered accordingly.

The respondent appealed from this order to the circuit court.

Farrow, United States District Attorney, and Thomas, for petitioner, cited and relied upon the following authorities : Act February 20, 1812; Act of August 23, 1842; 33d sect. Act of September 24, 1789; Act of May 31, 1870; United States Statutes, vol. 4, 118, sect. 13; Ib. vol. 1,

Vol. II.)

BROWN v. UNITED STATES.

[No. 10.

78, sect. 11; Revised Statutes, sect. 629; United States Statutes, vol. 16, 142, sect. 8; United States Constitution, art. 6, par. 2 ; Act of April 21, 1806; Bouvier, 533; Revised Statutes, sect. 743; 1 Wharton's Crim. Law, 185, 197; 2 Bishop's Crim. Law, sect. 987; The People v. Kelley, 38 Cal. 145; State v. Pike, 15 N. H. 83; State v. Adams, 4 Blackford, 146.

Hammond, Attorney General of the State of Georgia, for respondent, cited Acts of Congress, 1794, sect. 1; Crimes Act, 1825, sects. 13, 26; Fox v. Ohio, 5 How. 421 ; Act of 1789, Bright. 301, sect. 1; 1 Wash. 232; 1 McAllister, 74; 3 How. 103; 5 McLean, 92, 100, 174; 1 Gall. 1; 2 Wall. Jr. 525; 3 Peters, 193; The People v. Kelley, 38 Cal. 145. And he argued, inter alia, that the Habeas Corpus Act of Congress of the 5th of February, 1867, is to amend said Act of 1789. It simply extends the power of the United States courts, in habeas corpus, to persons restrained of liberty in violation of the Constitution, or any treaty or laws of the United States. See 14 Stats. at Large, 385. Its terms seem not to apply to cases where final judgment has passed and the party is imprisoned in execution of sentence, and, if it applies to any new case, this amendment nowhere repeals the proviso of the Act of 1789, and Mr. Brightly under it cites the cases from McAllister's Reports, supra, as showing the limit to the United States authority. What clause of the Constitution of the United States which law or treaty of the United States is violated by this prisoner being punished for perjury by a state court ?

BRADLEY, J. Dock Bridges was indicted in the superior court of Randolph County, Georgia, for perjury committed October 22, 1874, in an examination before a United States commissioner, under the enforcement act. The offence, though set out according to its circumstances, was charged to have been committed against the laws of Georgia ; but it was obvious that it was a crime against the laws of the United States only. It was perjury committed in the course of a judicial investigation under the acts of Congress, and was an offence against the public justice of the United States. By the Revised Statutes of the United States, sect. 5392, every person, who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, wilfully and contrary to said oath states any material matter which he does not believe to be true is guilty of perjury, and shall be punished by fine and imprisonment, prescribed by the act, and be thereafter incapable of giving testimony in any court of the United States. Such an offence is exclusively cognizable in the courts of the United States. By sect. 609 of the Revised Statutes, it is declared that the circuit courts shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except when otherwise provided, and concurrent jurisdiction with the district courts of crimes and offences cognizable therein; and by sect. 711 the jurisdiction vested in the courts of the United States, of all crimes and offences cognizable under the authority of the United States, shall be exclusive of the courts of the several states. The validity of these acts of Congress is not questioned. It would be a manifest incongruity for one sovereignty to punish a person for an offence committed against the laws of another sovereignty. And whilst certain offences, involving breaches of the peace, counterfeiting the public money, &c., may be violations of both fed

Vol. II.]

BROWN v. UNITED STATES.

[No. 10.

eral and state laws, and punishable under both, perjury in a judicial proceeding is peculiarly an offence against the system of laws under which the court is organized and proceeding. At all events, Congress has declared that the courts of the United States shall have cognizance, exclusive of the state courts, of all crimes and offences cognizable under its authority. Hence it was clearly in violation of the laws of the United States for the state court to try and imprison the defendant for the crime in question. The court had no jurisdiction of the case. The proceedings were null and void.

It is contended, however, that where a defendant has been regularly indicted, tried, and convicted in a state court, his only remedy is to carry the judgment to the court of last resort, and thence by writ of error to the

supreme court of the United States, and that it is too late for a habeas corpus to issue from a federal court in such a case. This might be so if the proceeding in the state court were merely erroneous; but where it is void for want of jurisdiction, habeas corpus will lie. Ex parte Lange, 18 Wall. 163; 1 Am. L. R. (N. S.) 257.

As a general rule, when it appears by a return to a habeas corpus that the prisoner is confined upon a regular charge and commitment for a criminal offence, and especially if he be confined in execution after a conviction, he will be at once returned into custody; and to this cautionary and conservative rule the fourteenth section of the Judiciary Act of 1789 provided, that the writ should in no case extend to prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed for trial before some court of the same, or were necessary to be brought into court to testify. But the general rule does not apply where the order of commitment is made by a tribunal or officer having no jurisdiction to make it ; and the proviso of the fourteenth section of the judiciary act has been greatly modified. The benefit of the writ may now be had by prisoners in jail, not only when in custody under authority of the United States, but in 1833, when the nullification proceedings were adopted in South Carolina, it was extended to those in custody for an act done in pursuance of a law of the United States, or of a judgment of any of its courts; in 1842, when the complications growing out of the McLeod case and the Canada rebellion occurred, it was extended to foreigners acting under the authority and sanction of their own government; and in more recent times it has been extended to all persons in custody in violation of the Constitution or a law or treaty of the United States. The present case belongs to the last category, and is relieved from the impediment to the use of a habeas corpus, which formerly existed where the prisoner was committed under state authority; whilst the want of jurisdiction in the state court removes any impediment arising from the general rule, which discountenances its use where the prisoner has been regularly convicted and sentenced.

The order of discharge must be affirmed.

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