1. The thirtieth section of the Act of March 3, 1863, 12 Stat.
731, entitled "An Act for enrolling and calling out the national
forces and for other purposes," did not make the jurisdiction of
the military tribunals over the offenses therein designated, when
committed by persons in the military service of the United States
and subject to the Articles of War, exclusive of that of such
courts of the loyal states as were open and in the undisturbed
exercise of their jurisdiction.
2. When the territory of the states which were banded together
in hostility to the national government and making war against it
was in the military occupation of the United States, the tribunals
mentioned in said section had, under the authority conferred
thereby and under the laws of war, exclusive jurisdiction to try
and punish offenses of every grade committed there by persons in
the military service.
3. Officers and soldiers of the Army of the United States were
not subject to the laws of the enemy nor amenable to his tribunals
for offenses committed
Page 97 U. S. 510
by them during the war. They were answerable only to their own
government, and only by its laws, as enforced by its armies, could
they be punished.
4. Unless suspended or superseded by the commander of the forces
of the United States which occupied Tennessee, the laws of that
state, so far as they affected its inhabitants among themselves,
remained in force during the war, and over them its tribunals,
unless superseded by him, continued to exercise their ordinary
jurisdiction.
5. A., charged with having committed murder in Tennessee whilst
he was there in the military service of the United States during
the rebellion, was, by a court-martial, then and there convicted
and sentenced to suffer death. The sentence, for some cause
unknown, was not carried into effect. After the constitutional
relations of that state to the Union were restored, he was, in one
of her courts, indicted for the same murder. To the indictment
he
pleaded his conviction before the court-martial. The plea being
overruled, he was tried, convicted, and sentenced to death.
Held:
1. That the state court had no jurisdiction to try him for the
offense, as he, at the time of committing it, was not amenable to
the laws of Tennessee.
2. That his plea, although not proper inasmuch as it admitted
the jurisdiction of that court to try and punish him for the
offense if it were not for such former conviction, would not
prevent this Court from giving effect to the objection taken in
this irregular way to such jurisdiction. Accordingly, this Court
reverses the judgment and directs the discharge of A. from custody
under the indictment.
The facts are stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes before us from the Supreme Court of Tennessee.
The plaintiff in error, the defendant in the court below, was
indicted in the Criminal Court for the District of Knox County in
that state on the 2d of October, 1874, for the murder of one
Mourning Ann Bell, alleged to have been committed in that county on
the 7th of March, 1865. To this indictment he pleaded not guilty,
and a former conviction for the same offense by a general
court-martial regularly convened for his trial at Knoxville, Tenn.,
on the 27th of March, 1865, the United States at that time, and
when the offense was committed, occupying with their armies East
Tennessee as a military district, and the defendant being a regular
soldier in their
Page 97 U. S. 511
military service, subject to the Articles of War, military
orders, and such military laws as were there in force by their
authority. The plea states that before the said court-martial thus
convened at Knoxville, then the headquarters of the military
district, the defendant was arraigned upon a charge of murder in
having killed the same person mentioned in the indictment, and that
he was afterwards, on the 9th of May, 1865, tried and convicted of
the offense by that tribunal, and sentenced to death by hanging,
and that said sentence is still standing as the judgment of the
court-martial, approved as required by law in such cases, without
any other or further action thereon. In consideration of the
premises and by reason of the said trial and conviction and of the
jeopardy involved in said proceedings, the defendant prays that the
indictment may be quashed.
Objection being taken by demurrer to this plea, it was twice
amended by leave of the court. The first amendment consisted in
setting forth with particularity the organization of the
court-martial and the proceedings before it upon which the
defendant was convicted of the offense with which he is charged in
the indictment. The second amendment consisted in adding an
averment that the offense charged was committed, and that the
court-martial which tried the defendant was held in time of civil
war, insurrection, and rebellion.
To the plea thus amended a demurrer was sustained on two
grounds, one of which was in substance that the defendant's
conviction of the offense charged by a court-martial, under the
laws of the United States, on the 9th of May, 1865, was not a bar
to the indictment for the same offense because by the murder
alleged, he was also guilty of an offense against the laws of
Tennessee.
The defendant was thereupon put upon his trial in the criminal
court, convicted of murder, and sentenced to death. On appeal to
the supreme court of the state the judgment was affirmed.
Pending the appeal to that court, the defendant was brought
before the Circuit Court of the United States for the Eastern
District of Tennessee on habeas corpus, upon a petition stating
that he was unlawfully restrained of his liberty and imprisoned
Page 97 U. S. 512
by the Sheriff of Knox County upon the charge of murder, for
which he had been indicted, tried, and convicted, as already
mentioned, and setting forth his previous conviction for the same
offense by a court-martial, organized under the laws of the United
States, substantially as in the plea to the indictment. The sheriff
made a return to the writ that he held the defendant upon a capias
from the criminal court for the offense of murder, and also upon an
indictment for assisting a prisoner in making his escape from jail.
The circuit court being of opinion that so far as the defendant was
held under the charge of murder, he was held in contravention of
the Constitution and laws of the United States, ordered his release
from custody upon that charge. His counsel soon afterwards
presented a copy of this order to the Supreme Court of Tennessee,
and moved that he be discharged. That court took the motion under
advisement, and disposed of it together with the appeal from the
criminal court, holding in a carefully prepared opinion that the
Act of Congress of Feb. 5, 1867, under which the writ of habeas
corpus was issued, did not confer upon the federal court or upon
any of its judges authority to interfere with the state courts in
the exercise of their jurisdiction over offenses against the laws
of the state, especially when, as in this case, the question raised
by the pleadings was one which would enable the accused to have a
revision of their action by the Supreme Court of the United States,
and therefore that the order of the circuit court in directing the
discharge of the defendant was a nullity. And upon the question of
the effect of the conviction by the court-martial, it held that the
conviction constituted no bar to the indictment in the state court
for the same offense on the ground that the crime of murder,
committed by the defendant whilst a soldier in the military
service, was not less an offense against the laws of the state and
punishable by its tribunals because it was punishable by a
court-martial under the laws of the United States.
The case being brought to this Court, it has been argued as
though its determination depended upon the construction given to
the thirtieth section of the Act of Congress of March 3, 1863, to
enroll and call out the national forces, the defendant's
counsel
Page 97 U. S. 513
contending that the section vested in general courts-martial and
military commissions the right to punish for the offenses
designated therein, when committed in time of war, by persons in
the military service of the United States and subject to the
Articles of War to the exclusion of jurisdiction over them by the
state courts. That section enacts:
"That in time of war, insurrection, or rebellion, murder,
assault and battery with an intent to kill, manslaughter, mayhem,
wounding by shooting or stabbing with an intent to commit murder,
robbery, arson, burglary, rape, assault and battery with an intent
to commit rape, and larceny, shall be punishable by the sentence of
a general court-martial or military commission when committed by
persons who are in the military service of the United States and
subject to the Articles of War, and the punishment for such
offenses shall never be less than those inflicted by the laws of
the state, territory, or district in which they may have been
committed."
12 Stat. 736.
The section is part of an act containing numerous provisions for
the enrollment of the national forces, designating who shall
constitute such forces, who shall be exempt from military service,
when they shall be drafted for service, when substitutes may be
allowed, how deserters and spies and persons resisting the draft
shall be punished, and many other particulars having for their
object to secure a large force to carry on the then existing war,
and to give efficiency to it when called into service. It was
enacted not merely to insure order and discipline among the men
composing those forces, but to protect citizens not in the military
service from the violence of soldiers. It is a matter well known
that the march even of an army not hostile is often accompanied
with acts of violence and pillage by straggling parties of soldiers
which the most rigid discipline is hardly able to prevent. The
offenses mentioned are those of most common occurrence, and the
swift and summary justice of a military court was deemed necessary
to restrain their commission.
But the section does not make the jurisdiction of the military
tribunals exclusive of that of the state courts. It does not
declare that soldiers committing the offenses named shall not be
amenable to punishment by the state courts. It simply
Page 97 U. S. 514
declares that the offenses shall be "punishable," not that they
shall be punished by the military courts, and this is merely saying
that they may be thus punished.
Previous to its enactment, the offenses designated were
punishable by the state courts, and persons in the military service
who committed them were delivered over to those courts for trial,
and it contains no words indicating an intention on the part of
Congress to take from them the jurisdiction in this respect which
they had always exercised. With the known hostility of the American
people to any interference by the military with the regular
administration of justice in the civil courts, no such intention
should be ascribed to Congress in the absence of clear and direct
language to that effect.
We do not mean to intimate that it was not within the competency
of Congress to confer exclusive jurisdiction upon military courts
over offenses committed by persons in the military service of the
United States. As Congress is expressly authorized by the
Constitution "to raise and support armies," and "to make rules for
the government and regulation of the land and naval forces," its
control over the whole subject of the formation, organization, and
government of the national armies, including therein the punishment
of offenses committed by persons in the military service, would
seem to be plenary. All we now affirm is that by the law to which
we are referred, the thirtieth section of the Enrollment Act, no
such exclusive jurisdiction is vested in the military tribunals
mentioned. No public policy would have been subserved by investing
them with such jurisdiction, and many reasons may be suggested
against it. Persons in the military service could not have been
taken from the army by process of the state courts without the
consent of the military authorities, and therefore no impairment of
its efficiency could arise from the retention of jurisdiction by
the state courts to try the offenses. The answer of the military
authorities to any such process would have been "We are empowered
to try and punish the persons who have committed the offenses
alleged, and we will see that justice is done in the premises."
Interference with the army would thus have been impossible, and
offenses committed by soldiers, discovered after the army
Page 97 U. S. 515
had marched to a distance, when the production of evidence
before a court-martial would have been difficult, if not
impossible, or discovered after the war was over and the army
disbanded, would not go unpunished. Surely Congress could not have
intended that in such cases the guilty should go free.
In denying to the military tribunals exclusive jurisdiction,
under the section in question, over the offenses mentioned when
committed by persons in the military service of the United States
and subject to the Articles of War, we have reference to them when
they were held in states occupying, as members of the Union, their
normal and constitutional relations to the federal government, in
which the supremacy of that government was recognized and the civil
courts were open and in the undisturbed exercise of their
jurisdiction. When the armies of the United States were in the
territory of insurgent states, banded together in hostility to the
national government and making war against it -- in other words,
when the armies of the United States were in the enemy's country --
the military tribunals mentioned had, under the laws of war and the
authority conferred by the section named, exclusive jurisdiction to
try and punish offenses of every grade committed by persons in the
military service. Officers and soldiers of the armies of the Union
were not subject during the war to the laws of the enemy or
amenable to his tribunals for offenses committed by them. They were
answerable only to their own government, and only by its laws, as
enforced by its armies, could they be punished.
It is well settled that a foreign army permitted to march
through a friendly country or to be stationed in it by permission
of its government or sovereign, is exempt from the civil and
criminal jurisdiction of the place. The sovereign is understood,
said this Court in the celebrated case of
The
Exchange, 7 Cranch 139, to cede a portion of his
territorial jurisdiction when he allows the troops of a foreign
prince to pass through his dominions:
"In such case, without any express declaration waiving
jurisdiction over the army to which this right of passage has been
granted, the sovereign who should attempt to exercise it would
certainly be considered
Page 97 U. S. 516
as violating his faith. By exercising it, the purpose for which
the free passage was granted would be defeated and a portion of the
military force of a foreign independent nation would be diverted
from those national objects and duties to which it was applicable,
and would be withdrawn from the control of the sovereign whose
power and whose safety might greatly depend on retaining the
exclusive command and disposition of this force. The grant of a
free passage therefore implies a waiver of all jurisdiction over
the troops during their passage, and permits the foreign general to
use that discipline and to inflict those punishments which the
government of his army may require.
*"
If an army marching through a friendly country would thus be
exempt from its civil and criminal jurisdiction,
a
fortiori would an army invading an enemy's country be exempt.
The fact that war is waged between two countries negatives the
possibility of jurisdiction being exercised by the tribunals of the
one country over persons engaged in the military service of the
other for offenses committed while in such service. Aside from this
want of jurisdiction, there would be something incongruous and
absurd in permitting an officer or soldier of an invading army to
be tried by his enemy whose country he had invaded.
The fact that when the offense was committed for which the
defendant was indicted, the State of Tennessee was in the military
occupation of the United States, with a military governor
Page 97 U. S. 517
at its head, appointed by the President, cannot alter this
conclusion. Tennessee was one of the insurgent states forming the
organization, known as the Confederate States, against which the
war was waged. Her territory was enemy's country, and its character
in this respect was not changed until long afterwards.
The doctrine of international law on the effect of military
occupation of enemy's territory upon its former laws is well
established. Though the late war was not between independent
nations but between different portions of the same nation, yet,
having taken the proportions of a territorial war, the insurgents
having become formidable enough to be recognized as belligerents,
the same doctrine must be held to apply. The right to govern the
territory of the enemy during its military occupation is one of the
incidents of war, being a consequence of its acquisition, and the
character and form of the government to be established depend
entirely upon the laws of the conquering state or the orders of its
military commander. By such occupation, the political relations
between the people of the hostile country and their former
government or sovereign are for the time severed, but the municipal
laws -- that is, the laws which regulate private rights, enforce
contracts, punish crime, and regulate the transfer of property --
remain in full force so far as they affect the inhabitants of the
country among themselves, unless suspended or superseded by the
conqueror. And the tribunals by which the laws are enforced
continue as before unless thus changed. In other words, the
municipal laws of the state and their administration remain in full
force so far as the inhabitants of the country are concerned unless
changed by the occupying belligerent. Halleck, Int.Law, c. 33.
This doctrine does not affect in any respect the exclusive
character of the jurisdiction of the military tribunals over the
officers and soldiers of the army of the United States in Tennessee
during the war, for, as already said, they were not subject to the
laws nor amenable to the tribunals of the hostile country. The laws
of the state for the punishment of crime were continued in force
only for the protection and benefit of its own people. As respects
them, the same acts which constituted
Page 97 U. S. 518
offenses before the military occupation constituted offenses
afterwards; and the same tribunals, unless superseded by order of
the military commanders, continued to exercise their ordinary
jurisdiction.
If these views be correct, the plea of the defendant of a former
conviction for the same offense by a court-martial under the laws
of the United States was not a proper plea in the case. Such a plea
admits the jurisdiction of the criminal court to try the offense if
it were not for the former conviction. Its inapplicability,
however, will not prevent our giving effect to the objection which
the defendant, in this irregular way, attempted to raise, that the
state court had no jurisdiction to try and punish him for the
offense alleged. The judgment and conviction in the criminal court
should have been set aside and the indictment quashed for want of
jurisdiction. Their effect was to defeat an act done, under the
authority of the United States, by a tribunal of officers appointed
under the law enacted for the government and regulation of the army
in time of war and whilst that army was in a hostile and conquered
state. The judgment of that tribunal at the time it was rendered,
as well as the person of the defendant, were beyond the control of
the State of Tennessee. The authority of the United States was then
sovereign, and their jurisdiction exclusive. Nothing which has
since occurred has diminished that authority or impaired the
efficacy of that judgment.
In thus holding, we do not call in question the correctness of
the general doctrine asserted by the Supreme Court of Tennessee
that the same act may, in some instances, be an offense against two
governments and that the transgressor may be held liable to
punishment by both when the punishment is of such a character that
it can be twice inflicted or by either of the two governments if
the punishment, from its nature, can be only once suffered. It may
well be that the satisfaction which the transgressor makes for the
violated law of the United States is no atonement for the violated
law of Tennessee. But here there is no case presented for the
application of the doctrine. The laws of Tennessee with regard to
offenses and their punishment, which were allowed to remain in
force during its
Page 97 U. S. 519
military occupation, did not apply to the defendant, as he was
at the time a soldier in the army of the United States and subject
to the Articles of War. He was responsible for his conduct to the
laws of his own government only as enforced by the commander of its
army in that state, without whose consent he could not even go
beyond its lines. Had he been caught by the forces of the enemy
after committing the offense, he might have been subjected to a
summary trial and punishment by order of their commander, and there
would have been no just ground of complaint, for the marauder and
the assassin are not protected by any usages of civilized warfare.
But the courts of the state, whose regular government was
superseded and whose laws were tolerated from motives of
convenience, were without jurisdiction to deal with him.
This conclusion renders it unnecessary to consider the question
presented as to the effect to be given to the order of the circuit
court of the United States directing the discharge of the
defendant. It is sufficient to observe that by the Act of Congress
of Feb. 5, 1867, the several courts of the United States and their
judges, in their respective jurisdictions, have, in addition to the
authority previously conferred, power to grant writs of habeas
corpus in all cases upon petition of any person restrained of his
liberty in violation of the Constitution or of any law of the
United States, and if it appear on the hearing had upon the return
of the writ that the petitioner is thus restrained, he must be
forthwith discharged and set at liberty.
Ex
parte Yerger, 8 Wall. 101.
It follows from the views expressed that the judgment of the
Supreme Court of Tennessee must be reversed, and the cause remanded
with directions to discharge the defendant from custody by the
Sheriff of Knox County on the indictment and conviction for murder
in the state court. But as the defendant was guilty of murder, as
clearly appears not only by the evidence in the record in this case
but in the record of the proceedings of the court-martial -- a
murder committed, too, under circumstances of great atrocity -- and
as he was convicted of the crime by that court and sentenced to
death, and it appears by his plea that said judgment was duly
approved and still remains without any action's having been taken
upon
Page 97 U. S. 520
it, he may be delivered up to the military authorities of the
United States, to be dealt with as required by law.
So ordered.
* The same exemption from the civil and criminal jurisdiction of
the place is extended to an armed vessel of war entering the ports
of a friendly country by permission of its government or seeking an
asylum therein in distress. She is accorded the rights of
extratorially, and is treated as if constituting a part of the
territory of her sovereign. "She constitutes," said the Court in
the same case,
"a part of the military force of her nation, acts under the
immediate and direct command of the sovereign, is employed by him
in national objects. He has many and powerful motives for
preventing those objects from being defeated by the interference of
a foreign state. Such interference cannot take place without
affecting his power and his dignity. The implied license,
therefore, under which such vessel enters a friendly port may
reasonably be construed, and it seems to the Court ought to be
construed, as containing an exemption from the jurisdiction of the
sovereign within whose territory she claims the rights of
hospitality."
7 Cranch
11 U. S. 144.
See also Cushing on Belligerent Asylum in Opinions of
Att'ys-Gen., vol. vii. p. 122; Halleck, Int.Law c. 7, sec. 25.
MR. JUSTICE CLIFFORD dissenting.
State constitutions, as well as the Constitution of the United
States, provide, in substance and effect that no person shall be
subject to be twice put in jeopardy of life for the same offense.
Wherever that constitutional prohibition is found, whether in a
state or the federal constitution, it is doubtless intended as a
safeguard to the citizen against the repetition of a criminal
prosecution in all cases where the accused has been once regularly
tried for the same offense, and legally convicted or acquitted,
which means that a party shall not be tried a second time for the
same offense after he has once been convicted or acquitted of the
same by the verdict of a jury, and judgment has been rendered in
the case against him or in his favor. But it does not mean that he
shall not be tried for the offense a second time if the jury in the
first trial were discharged without giving any verdict or if,
having given a verdict, the judgment was arrested or a new trial
was granted at the request of the accused, for in such a case the
life of the accused cannot judicially be said to have been put in
jeopardy. 2 Story, Const. (3d ed.), sec. 1787;
United States v.
Haskell, 4 Wash. 410;
Same v. Perez,
9 Wheat. 579.
Borrowed, as that provision was, from the common law, it has
everywhere been held to be subject to the same exceptions,
limitations, and qualifications as were annexed to it by the
expounders of the great repository of criminal jurisprudence.
Vaux's Case, 1 Coke, 100.
Jeopardy, in the constitutional sense, arises when the accused
is put to trial before a court of competent jurisdiction upon a
sufficient indictment and the prisoner has been legally convicted
or acquitted by the verdict of a jury, as appears by the record
thereof remaining in the court where the verdict was returned. 1
Bishop, Cr.Proced. (2d ed.), sec. 808.
Authorities may be referred to where it is held that the
prisoner is put in legal jeopardy when the jury is duly impaneled
and charged with his deliverance; but there are so many
exceptions
Page 97 U. S. 521
to that theory that it cannot be regarded as a rule of decision
unless the trial is terminated short of a verdict and judgment by
the fault of the prosecutor.
Even when the trial terminates before judgment without the fault
of the accused or where the form of the trial, verdict, and
judgment are in all respects correct, there are exceptions to the
rule that the accused shall not be twice put in jeopardy of life,
as well established and as universally acknowledged as the rule
itself, of which the following are examples:
Legal jeopardy does not arise if the court had not jurisdiction
of the offense.
Commonwealth v. Peters, 12 Metc. (Mass.)
387;
Commonwealth v. Goddard, 13 Mass. 455;
The People
v. Tyler, 7 Mich. 161.
Nor is such a party put in legal jeopardy if it appears that the
first indictment was clearly insufficient and invalid.
Commonwealth v. Bakeman, 105 Mass. 53;
Gerard v. The
People, 3 Ill. 362;
The People v. Cook, 10 Mich. 164;
Mount v. Commonwealth, 2 Duv. (Ky.) 93.
Nor if by any overruling necessity the jury are discharged
without a verdict.
United States v.
Perez, 9 Wheat. 579;
The People v.
Goodwin, 18 Johns. (N.Y.) 187;
Commonwealth v.
Bowden, 9 Mass. 494;
Commonwealth v. Purchase, 2
Pick. (Mass.) 521.
Nor is such a party put in legal jeopardy if the term of the
court, as fixed by law, comes to an end before the trial is
finished.
The State v. Brooks, 3 Humph. (Tenn.) 70;
State v. Mahala, 10 Yerg. (Tenn.) 532;
State v.
Battle, 7 Ala. 259;
In the Matter of Robert Spier, 1
Dev. (N.C.) L. 491;
Wright v. State, 5 Ind. 290; Cooley,
Const.Lim. (4th ed.) 404.
Nor if the jury are discharged before verdict, with the consent
of the accused, expressed or implied.
State v. Slack, 6
Ala. 676.
Nor if the verdict is set aside on motion of the accused, or on
writ of error sued out in his behalf.
The state of Iowa v.
Redman, 17 Ia. 329.
Nor in case the judgment is arrested on his motion.
The
People v. Casborus, 13 Johns. (N.Y.) 351.
Sufficient appears to show that the prisoner, on the 2d of
October, 1874, was in due form indicted of the crime of murder
Page 97 U. S. 522
in the proper criminal court of the county where the homicide
was committed, the charge being that he, the prisoner, in that
county, on the 7th of March, 1865, unlawfully, maliciously,
willfully, deliberately, premeditatedly, and of his malice
aforethought, with a certain pistol which he then and there in his
hand had and held, did shoot M. Ann Bell, then and there is the
peace of God and the state being, from which shooting, in manner
and form as alleged, the said M. Ann Bell then and there instantly
died. Due process was issued and served, and the prisoner, upon his
arraignment, pleaded that he was not guilty of the offense charged
against him, and put himself upon the country.
Appended to that plea the prisoner also pleaded in bar of the
indictment a former conviction for the same offense, in substance
and effect as follows: that at the time he committed the alleged
homicide he was an enlisted soldier in the federal army, which was
then and there in the occupation and control of the military
district where the act of homicide was committed, and that he was
then and there subject to the Articles of War, and that by virtue
thereof he was then and there, to wit, on the 24th of March, 1865,
arraigned before a general court-martial upon charges and
specifications setting forth the identical murder of the identical
same person, which is the identical offense with which he is
charged in the aforesaid indictment; that on the 9th of May
following he was convicted of the crime of murder, and was
sentenced by the court-material to suffer the penalty of death by
hanging; and he avers that the murder of which he was charged, and
for which he was arraigned, tried, and convicted, is the same
identical offense set forth in the pending indictment, and that the
sentence is still standing as the judgment of said general
court-martial, approved as required by law, without any other or
further action thereon.
When the court met again, to-wit, on the 6th of September in the
same year, the district attorney of the county demurred to the plea
in bar; and the court, after hearing the parties, sustained the
demurrer, upon two grounds: first, because it did not convey a
reasonable certainty of meaning, and secondly, because it did not
show a substantial cause of defense.
Page 97 U. S. 523
Leave being granted, the prisoner amended his special plea in
bar of the indictment. By the amended plea he set forth the names
of the officers comprising the general court-martial, the order
under which it was convened, and the specification and charge under
which he was arraigned, tried, and convicted. Averments are also
set forth in the amended plea that the offense charged in the
specification before the general court-martial is the same as that
embodied in the indictment, and that the court-martial adjudged the
prisoner guilty of the offense charged, and sentenced him to be
punished as in such case made and provided, to which is added that
the proceedings were forwarded to the commander of the department,
and that he, the said commander, approved and confirmed the
sentence, and ordered that the same should be carried into
execution.
Pursuant to the leave granted, the amendment to the plea was
duly filed in the case, and the district attorney demurred to it,
and assigned the following causes for the demurrer:
1. Because neither the plea nor the amendment alleges that the
judgment of the court-martial is still in force and effect.
2. Because it is not alleged in either that the prisoner at the
time of trial was subject to the Articles of War.
3. Because neither the plea nor the amendment thereto alleges
that it was during or in time of war, insurrection, or rebellion,
when the offense was committed with which the prisoner is
charged.
4. Because the conviction by the court-martial, even if regular
in form, is no bar to the pending indictment for the alleged
offense committed against the laws of the state.
Hearing was had, and the court where the indictment was found
sustained the demurrer for the first and fourth causes shown by the
pleader. Preliminary questions of the kind having been determined
adversely to the prisoner, the jury was duly impaneled for his
trial; and they returned a verdict that he was guilty of murder in
the first degree as charged in the indictment, without mitigating
circumstances. Murder in the first degree is a capital offense in
that state, and the court, on the first day of October following,
sentenced the prisoner to be punished as required by law.
Exceptions were filed by the prisoner, and he appealed from
Page 97 U. S. 524
the judgment of the subordinate court to the supreme court of
the state. Pending the appeal, to-wit, on the 17th of March, 1876,
he filed a petition for a writ of habeas corpus in the circuit
court of the United States, alleging that the was unlawfully
restrained of his liberty by the sheriff of the county. Service was
made; and the sheriff returned that he held the prisoner by virtue
of a capias from the county criminal court for the offense of
murder, and under an indictment for an escape from the county jail.
Due return having been made, the court adjudged that the prisoner,
so far as he was held under the charge of murder, should be
released from custody and be permitted to go thence without
hindrance or molestation; but he continued to remain in prison
under the other charge.
Enough appears to show that the supreme court of the state,
inasmuch as the order of discharge had respect to a prisoner in
custody under state process, was of the opinion that it was a mere
nullity, and that the same court proceeded to determine the legal
questions involved in the appeal.
No question under the petition for habeas corpus is presented in
the pleadings, nor was any such question ruled or decided by the
court of original jurisdiction. Two questions presented by the
special demurrer were decided by the judge at the trial adversely
to the prisoner, both of which were properly before the supreme
court on appeal, and were, in effect, decided in the same way:
1. That the plea in bar was defective because it did not allege
that the judgment of the court-martial was still in force and
operative.
2. Because the conviction by the court-martial, even if the plea
is regular in form, is not a bar to the pending indictment.
Three points were decided by the state Supreme Court:
1. That the order of discharge made by the Circuit Court was a
nullity.
2. That the plea in bar, even if sufficient in form, was no bar
of the indictment found in the state court.
3. That the plea in bar was defective for the two reasons
assigned by the subordinate court, and for these reasons the
Supreme Court affirmed the judgment of the local court and ordered
that the sentence there pronounced be carried into execution.
Immediate application was made by the prisoner for a writ of
error to remove the cause into this Court, which was granted,
Page 97 U. S. 525
and an order entered there staying further proceedings in that
court during the pendency of the writ of error.
Questions of difficulty arise in the case, of which the
following are the most important:
1. Conceding that the record of a former conviction is a good
defense to a second indictment for the same offense, is that
defense well pleaded in the case before the court?
2. Suppose the sentence of a court-martial is such a judgment as
will support such defense, when the second indictment is for the
same offense and for a violation of the laws of the same
sovereignty, will the record of a sentence by a court-martial of
the United States support the plea of a former conviction, where
the second indictment is found for an offense committed in
violation of a state law?
3. Even if a circuit court may grant the writ of habeas corpus
to a prisoner in custody under state process, is the order
discharging the prisoner from such custody a bar to the further
prosecution of the indictment under which he was held prior to such
order of discharge?
Argument to show that the defense of a former conviction must be
pleaded is quite unnecessary, as the rule at the present day is
universally acknowledged; nor is it necessary to enter into much
discussion to prove that it will not avail as a defense unless it
is well pleaded, as that follows from the antecedent proposition,
the rule being that the evidence is not admissible under the
general issue.
The People v. Benjamin, 2 Park (N.Y.) Cr.
201; 1 Bennett, Lead.Cr.Cas. (2d ed.) 541.
Second convictions, or even second trials, after legal
conviction or acquittal, are not allowed in the administration of
criminal justice; and the test by which to decide whether the
accused has been once legally convicted or acquitted, says Spencer,
C.J., is familiar to every lawyer, and he proceeds to say that it
can only be by plea of
autrefois convict or
autrefois
acquit, both of which are grounded upon the universal maxim of
the common law that no man is to be brought into jeopardy of his
life more than once for the same offense, from which it follows as
a consequence that if the accused has been once fairly convicted or
found not guilty by the verdict of a jury, he may plead such
conviction or acquittal in bar of any subsequent
Page 97 U. S. 526
accusation for the same offense, but the defense must be
pleaded, and it must be alleged and proved by the former record
that the conviction or acquittal was legal, and that it was based
on the verdict of a jury duly impaneled and sworn, else the plea
will be subject to demurrer.
The People v. Goodwin, 18
Johns. (N.Y.) 187;
The People v. McKay, id., 212;
The
People v. Olcott, 2 Johns. (N.Y.) Cas. 301.
Jurisdiction is essential to the validity of every conviction or
acquittal, as the rule is universal that a former conviction or
acquittal in a court having no jurisdiction of the offense is a
mere nullity, and constitutes no bar to a second prosecution.
Rex v. Bowman, 6 Car. & P. 101;
State v.
Elden, 41 Me. 165;
Commonwealth v. Roby, 12 Pick.
(Mass.) 496.
Pleas of the kind must allege that the former trial was in a
court having jurisdiction of the case, and that the person and the
offense are the same, and must set forth the former record, else
the plea will be bad.
King v. Wildey, 1 Mau. & Sel.
188; 1 Burn, Justice (30th ed.) 352; 2 Russell (4th ed.) 60;
Rex v. Edwards, Russ. & R. 224.
Standard authorities which show that the plea of a former
conviction or acquittal must set forth the substance of the record
are very numerous and decisive. Where the plea is
autrefois
convict, it must appear that the prisoner received sentence as
required by law; or if the plea be
autrefois acquit, it
must appear that the court gave the order that he go without day.
Roscoe, Cr.Evid. (8th ed.) 199.
Defenses of the kind are often set up; and in order to avoid
false pretences, the established rule is, that the accused is
required not only to show the nature of the former prosecution and
the conviction or acquittal with certainty in his plea, but also to
show the record or its substance to the court, by producing or
vouching it at the time he pleads, for otherwise it would be in his
power to delay the trial when he pleased by pleading a former
conviction or acquittal in another jurisdiction, and in order to
prevent such false pretences in pleading, the requirement is, that
the plea shall show the record, or vouch it if it be in the same
court in the first instance, and that he is not allowed to wait
until
nul tiel record is pleaded by the prosecutor. 2
Stark.Cr.Pl. 350.
Page 97 U. S. 527
Support to that proposition is found in the form of such pleas
as given in all the standard works of criminal law. Such a form of
pleading is given by Bishop in his valuable work upon Criminal
Procedure. His directions are that the pleader shall set forth the
former conviction and judgment verbatim, and then proceed as
follows:
"As by the record thereof in the said court remaining more fully
and at large appears, which said judgment and conviction still
remain in full force and effect, and not in the least reversed or
made void."
1 Bishop, Cr.Proced. (2d ed.) sec. 808.
Exactly the same form of such a plea is given by Train &
Heard in their work entitled "Precedents of Indictments," and their
directions to the pleader are the same -- that is, that the pleader
shall set forth the former judgment and conviction verbatim, and
then proceed to allege as directed in the other treatise,
"as by the record thereof in the said court remaining more fully
and at large appears, which said judgment and conviction still
remain in full force and effect, and not in the least reversed or
made void."
Train & Heard, Prec.Indict. 486.
Forms for pleas in bar in such cases are also given by Mr.
Archbold in his standard work upon Pleading in Criminal Cases. Like
the forms previously noticed, he also directs that the substance of
the proceedings in the former suit be fully set forth, and that the
pleader proceed to add,
"as by the record of the said conviction more fully and at large
appears, which said judgment and conviction still remain in full
force and effect, and not in the least reversed or made void."
Archb.Plead. in Cr.Cas. (18th ed.) 141.
Averments of a like character are required by the form of such a
plea given by Mr. Wharton in his work entitled "Precedents of
Indictments." He gives the substance of the proceedings in the suit
which led to the former conviction, and adds,
"as by the record thereof more fully and at large appears, which
said judgment still remains in full force and effect, and not in
the least reversed or made void."
2 Whart.Prec.Indict. & Pleas (3d ed.), sec. 1154.
Courts and lawyers in Massachusetts, having occasion to study
the forms of pleading in criminal cases, were for more
Page 97 U. S. 528
than a quarter of a century accustomed to consult the
precedents, furnished by a learned and experienced prosecuting
officer of that Commonwealth. Concise as the form is as given in
that volume, it is nevertheless believed to contain all the
necessary elements of a good plea. Suffice it to say that the
author directs the pleader to recite the record of the former
judgment and conviction verbatim, and then proceed as follows,
to-wit, as by the record thereof more fully and at large appears,
which said judgment still remains in full force and effect. Davis,
Precedents 278.
Treatises of a standard character everywhere contain such a
requirement, of which the very latest is that by Mr. F. F. Heard,
whose extensive and accurate learning upon the subject of pleading
in criminal cases entitles his opinion to great weight. His
directions to the pleader are as follows: set forth the former
judgment and conviction verbatim, and proceed to aver, as by the
record thereof in the said court more fully and at large appears,
which said judgment and conviction still remain in full force and
effect, and not in the least reversed or made void. Mass.Cr.Law
837.
Confirmed as that writer is by Starkie and Archbold, and by Lord
Ellenborough in
King v. Wildey, 1 Mau. & Sel. 188, his
view ought to be regarded as conclusive, and the same author states
that the defense of a former conviction or a former acquittal must
be pleaded, and that it is not admissible under the general issue,
which is decisive of the whole case. P. 172.
Matters of a special character suggested in defense of a
criminal prosecution which are not well pleaded, if duly demurred
to, are to be treated as if they had no existence, and if that be
so, and it be well settled law that the defense of
autrefois
convict is not admissible in evidence under the general issue,
then it follows that the whole foundation of the judgment of the
court in this case is swept away. Since the time of Lord Coke, it
has been settled law that such a plea is bad, unless it contains
the averment that the prior judgment is in full force and
unreversed, and the transcript shows that the prosecutor demurred
to the plea on account of that defect, and that the state court
sustained the demurrer and adjudged
Page 97 U. S. 529
the plea bad. Nor can any authority be found to support the
proposition that such a defense is admissible under the general
issue, and if not, then it follows to a demonstration that the
judgment of the state court is correct.
Convictions and judgments may be reversed in criminal as well as
in civil cases; and it is settled law that a second trial, where
the former conviction or judgment is reversed, is not a violation
of the constitutional provision which declares that no person shall
be subject to be twice put in jeopardy for the same offense.
The People v. Rulloff, 5 Park. (N.Y.) Cr. 82; 1 Colby,
Cr.Law, 280;
Cobia v. The state, 16 Ala. 781; 2 Story,
Const. (3d ed.) 1787.
Exceptions of the kind and many others existing to the rule that
a former conviction for the same offense is a bar to a pending
indictment, show the necessity that the plea should set forth the
substance of the proceedings in the former suit, and contain
sufficient averments to show that the judgment is unreversed and in
full force and effect. Where the judgment in the former suit was in
another jurisdiction, the form given for the plea of
autrefois
convict, as given in all the standard writers on the subject,
contains the formal averment that the judgment is unreversed and in
full force.
Less strictness is required in pleading
autrefois
acquit, and in cases where the former trial and sentence were
in the same court where the second indictment is pending. Text
writers in some cases seem to require the same averment as when the
plea of a former conviction is based upon the record existing in
another jurisdiction, but the better opinion is that the plea
setting up a former conviction or acquittal in the same court is
good if the pleader makes a profert of the record, as follows, as
appears by the record of the proceedings now here remaining in
court.
Rex v. Sheen, 2 Car. & P. 634.
Even in these cases the pleader must make profert of the record
of the former conviction, or the plea will be bad, as appears by
each one of the following authorities:
Regina v. Bird, T.
& M. 445, note. In that case, the form of the plea is given in
the note, and the words of the averment are "as by the record of
the said proceedings now here appears."
Same v. Same, 5
Cox C.C. 14;
Same v. Same, 2 Eng.L. & Eq. 448.
Page 97 U. S. 530
Substantial conformity with the requirement that the former
record shall be set forth or profert made of it, will be sufficient
to support the plea of autrefois acquit, if the offense charged in
the pending indictment is the same as that embodied in the record
of the former acquittal, as the only judgment in case of acquittal
is that the prisoner be discharged and go without day.
The King
v. Emden, 9 East 438.
Confirmation of that proposition is found in several cases, but
it is equally well settled that if the plea does not state the
substance of the former proceedings and does not make profert of
the former record, the plea is bad, and will be held insufficient
on demurrer.
The King v. Vandercomb, 2 Leach 714.
There can be no plea of
autrefois acquit, says Jervis,
C.J., where there is no judgment in the former trial on record.
Regina v. Reid, Ackroyd, & Rothwell, 1 Eng.L. &
Eq. 595.
Speaking of the plea of
autrefois convict, Chitty says,
it is of a mixed nature, and consists partly of matter of record
and partly of matter of fact, and he adds, with emphasis, that it
is settled to be absolutely requisite to set forth in the plea the
record of the former acquittal, and, if so, it is equally requisite
that it should be averred that the judgment is unreversed and in
full force, as every lawyer of experience in criminal law knows
that, if the verdict was set aside or the judgment arrested at the
request of the person convicted, the conviction becomes a nullity.
1 Chitty, Cr.L. 463;
Regina v. Drury, 3 Car. & Kir.
193;
Waller v. The State, 40 Ala. 325.
For these reasons, I am of opinion that the plea in bar to the
indictment filed by the prisoner was bad, and that the decision of
the state court sustaining the demurrer to it was correct. Having
come to that conclusion, it is not necessary to examine the other
objection to the plea in bar.
Suppose, for the sake of argument, that the plea in bar in this
case is sufficient in form, still the question arises whether the
sentence of a court-martial of the United States is such a judgment
as will sustain the plea of
autrefois convict in a case
where the pending indictment is found by the grand jury of a state
for an offense defined by the laws of a state.
When the federal Constitution was adopted, many of the rights of
sovereignty previously possessed by the states were
Page 97 U. S. 531
to the United States; and all agree that in the exercise of
these powers the federal government is supreme in its sphere of
action, but the power to establish the ordinary regulations of
police was still left with the individual states, and Mr. Cooley
says that it cannot be taken from the states, nor can it be
exercised under legislation by Congress. Neither can the national
government, through any of its departments of officers, assume any
supervision of the police regulations of the states. Cooley,
Const.Lim. (4th ed.) 715;
United States v.
Dewit, 9 Wall. 44.
It has been frequently decided by this Court, says Mr. Justice
Grier, that the powers which relate merely to municipal
regulations, or what may properly be called internal police, are
not surrendered by the states or restrained by the Constitution of
the United States, and that consequently, in relation to these, the
authority of a state is complete unqualified, and conclusive; and
he decided that every law for the restraint and punishment of
crime, for the preservation of the public peace, health, and
morals, must come within that category.
License
Cases, 5 How. 504.
All that the federal authority can do in such a case is to see
that the states do not, under cover of this power, invade the
sphere of federal sovereignty, and obstruct or impede the exercise
of any authority which the Constitution has confided to the United
States, or deprive any citizen of rights guaranteed by the
Constitution. State powers of the kind extend to every rightful
subject of legislation connected with their internal affairs, not
prohibited by the federal Constitution, which is necessary to
protect the life and health of the citizen and to promote the
peace, prosperity, and good order of society, and give efficacy to
the maxim that each shall use what is his own, in such a manner as
not to injure that of another.
Thorp v. The Rutland &
Burlington Railroad Co., 27 Vt. 140; Potter's Dwarris 454.
By the law of the state, murder is defined as follows: if any
person of sound memory and discretion unlawfully kill any
reasonable creature in being and under the peace of the state, with
malice aforethought, either express or implied, such person shall
be guilty of murder. 3 State Stat. 43
Page 97 U. S. 532
Beyond question, the prisoner, on the 2d of October, 1874, was
duly indicted of the crime of murder by the grand jury of the
county, as appears by the indictment set forth in the record.
Judicial authorities are not necessary to show that no federal
court created by Congress had jurisdiction of the offense, as the
homicide was committed on land within the state, and not within any
place over which the United States had exclusive jurisdiction.
Exclusive jurisdiction of the offense, therefore, was vested in the
state court, unless it can be held that the unexecuted sentence of
the court-martial superseded the state law defining the crime of
murder, and deprived the state court of the power to hear, try, and
sentence the prisoner if found guilty, as that law required.
Congress has never defined such an offense, when committed
within the acknowledged jurisdiction of the state, under the
circumstances disclosed in the record, nor is there any pretence
for the suggestion, that there is any conflict between the
authorities of the state and the judicial authorities of the United
States. Sentence without punishment is all that is pretended in
this case; and the prisoner, through his counsel, admits that the
failure of the United States to carry the sentence into effect must
be taken as an abandonment by the United States to execute the
plaintiff for the offense of which he was convicted by the
court-martial.
Appeal from the sentence of the judge who presided at the trial
to the state supreme court appears to have been taken chiefly, if
not entirely, for the purpose of reviewing the ruling of the judge
that the plea in bar filed by the prisoner was bad. Evidence to
show that any other ruling of the judge was seriously controverted
in the appellate tribunal is not found in the transcript, nor has
any such attempt been made in argument here by the counsel of the
prisoner. Instead of that, the main stress of the argument has been
to show that the order of the circuit court discharging the
prisoner under the petition for habeas corpus is final and
conclusive, and to show that no person can lawfully be twice put in
jeopardy of life, without much regard to the question whether the
plea in bar is good or bad.
Unless the unexecuted sentence of the court-martial is such
Page 97 U. S. 533
a judgment as will support a plea of
autrefois convict,
it is clear that the ruling of the state judge at the trial was
correct, even if it could be admitted that it is not required of
such a plea that it should aver that the former judgment is in full
force and effect. Due order was given by the commander of the
department that the sentence should be carried into execution; but
it was not, and the record fails to show for what reason the order
was disobeyed or neglected. It may have been countermanded, or the
prisoner may have deserted, or the occurrence may possibly be
accounted for in some other way. However that may be, it is clear
that the sentence was never executed, and it is perhaps equally
clear that it has become a nullity by the intervention of
peace.
No sentence of a court-martial inflicting the punishment of
death shall be carried into execution until it shall have been
confirmed by the President, except in the enumerated cases of
persons, including murderers, convicted in time of war, but the
same article provides that in such excepted cases the sentence of
death may be carried into execution, upon confirmation by the
commanding general in the field, or the commander of the
department, as the case may be. Rev.Stat., art. 105, p. 240.
Approved and confirmed, as the sentence was, by the commander of
the department, and not by the President, it may well be contended
that it became abandoned when peace came. Peace came in the state
where these proceedings took place on the 2d of April, 1866, as
expressly decided by this Court,
The
Protector, 12 Wall. 700, and the plea in bar in
this case was not filed until May 31, 1875, nine years after the
war of the rebellion terminated in that state.
Unapproved as the sentence of the court-martial was by the
President, it is clear that it had become inoperative before the
plea in bar was filed, and consequently was not at that time such a
judgment as would support the plea of autrefois convict -- the rule
being, by all the well considered authorities, that the judgment,
in order that it may be sufficient to support such a plea, must be
in full force and effect, and not in the least reversed or made
void.
The King v. Wildey, 1 Mau. & Sel. 183; Bishop,
Cr.Proced. (2d ed.), sec. 808.
Opposed to this is the suggestion that the prisoner served
in
Page 97 U. S. 534
the army subsequent to the sentence of the court-martial, but if
so, the inference is irresistible that he got back by deception or
misrepresentation; nor is it believed to be true that he now holds
an honorable discharge from the public military service.
Even if a circuit court may grant the writ of habeas corpus to a
prisoner convicted of murder in a state tribunal, and in custody on
appeal under process from the highest court of a state, it by no
means follows that the order of such a judge discharging such a
prisoner from custody under a state law is a bar to the further
prosecution of the indictment under which he was held prior to such
order of discharge.
Prior to the passage of the Act of the 5th of February, 1867,
the universal rule, as enacted by Congress, was,
"that writs of habeas corpus shall in no case extend to
prisoners in jail, unless where they are in custody under and by
color of the authority of the United States, or are committed for
trial before some court of the same, or are necessary to be brought
into court to testify."
1 Stat. 82; 14
id. 385.
Apply that rule to the case, and it is clear to a demonstration
that the circuit court had no jurisdiction to grant the writ of
habeas corpus, under which the prisoner was discharged. Both
parties concede that proposition; but the prisoner, through his
counsel, insists that the jurisdiction to issue the writ and order
the discharge was plainly conferred by the subsequent act of
Congress.
Justices and judges of the courts of the United States have
power, in addition to the authority previously conferred, 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. 15
id. 385.
Evidently the last act does not repeal the former, its only effect
being to confer additional authority upon the subject.
Writs of habeas corpus may be granted to deliver the applicant
from imprisonment, even when confined under state process, if he is
so confined in violation of the Constitution or a law of Congress,
and not otherwise. Except when the prisoner is restrained of his
liberty in violation of the Constitution or law of Congress, the
jurisdiction of the federal courts in
Page 97 U. S. 535
such cases remains as it stood before, and does not extend to
prisoners in custody under state process.
Grant that, and it follows that the order of the circuit court
discharging the prisoner from custody under the state process was a
nullity, at least for two reasons:
1. Because the plea of autrefois convict was bad; and if bad,
then it did not appear in contemplation of law that he was a second
time put in jeopardy by the pending indictment.
2. Because it clearly appears that the sentence of the
court-martial was not such a judgment as will support the plea of
autrefois convict, and if not, then it did not appear that the
prisoner was restrained of his liberty in violation of the
Constitution or a law of Congress.
Jurisdiction to try and punish offenders against the authority
of the United States is conferred upon the circuit and district
courts, but those courts have no jurisdiction of offenses committed
against the authority of a state.
Criminal homicide, committed in a state, is an offense against
the authority of the state unless it was committed in a place
within the exclusive jurisdiction of the United States. Offenses of
the kind, if committed by a person in the military service of the
United States, are breaches of military discipline, and the
offender may be tried and sentenced by a court-martial; but the
sentence, if it awards the punishment of death, cannot be carried
into execution until it is approved and confirmed by the President,
except in cases of persons convicted in time of war, as before
explained. Cases arise, undoubtedly, where a conqueror, having
displaced the courts of the conquered country, may establish
special tribunals in their place; but it is quite sufficient to
say, in response to that suggestion, if made, that no such question
is involved in the case before the court, as fully appears from the
plea in bar filed by the prisoner -- the only question being
whether the sentence of the court-martial is such a judgment as, if
well pleaded, will support the plea of
autrefois convict
in bar of an indictment for murder committed in violation of a
state law.
Military conquerors, in time of war, may doubtless displace the
courts of the conquered country, and may establish civil tribunals
in their place for administering justice; and where
Page 97 U. S. 536
that is done, it is unquestionably true that the jurisdiction of
the tribunals established by the conqueror is rightful and
conclusive.
United States v.
Rice, 4 Wheat. 246;
Cross v.
Harrison, 16 How. 164.
But that concession only shows that the military occupant
holding the possession of a state has the belligerent power to
reorganize the local government as the means of enforcing the
sovereignty of the conqueror; but the mere occupancy of the
territory by his forces does not necessarily displace the local
tribunals of justice, as the conqueror, if he sees fit, may suffer
them to remain.
Courts of justice for the trial of criminal offenses were not
established by the military conqueror or the state, nor was the
prisoner tried before any such tribunal. Nothing of the kind is set
up in the pleas in bar, nor is any thing of the kind pretended in
argument. Instead of that, the record shows that the tribunal was a
general court-martial, convened under the rules and regulations for
the government of the army, which were as applicable at the time in
the loyal as in the rebellious states.
Contradicted as such a theory is by every line of the record, it
is clear that it has no proper foundation, either in truth, law, or
justice.
Without more, the two objections to the plea of
autrefois
convict -- to-wit, that it is bad in form, and that the
sentence of the court-martial, at the time it was pleaded, was not
such a judgment as would support such a plea -- are amply
sufficient to show that the judgment of the state court should be
affirmed; but I am also of the opinion that the order of the
circuit court discharging the prisoner from imprisonment is a
nullity.
Discussion to show that willful murder is an offense against the
authority of the state is unnecessary, as that proposition is fully
established by the law of the state. 3 State Stat. 43. Grant that
and still it is suggested that it is also a military offense, which
may be tried and punished by court-martial, which is admitted
without hesitation; but it is not admitted that an unexecuted
sentence of such a court-martial is a bar to a subsequent
prosecution by the state for the murder of one of her citizens.
The state v. Rankin, 4 Cold. (Tenn.) 145.
Page 97 U. S. 537
An offense, says Mr. Justice Grier, speaking for the whole
court, means, in its legal signification, the transgression of a
law; and he adds, that a man may be compelled to make reparation in
damages to the injured party, and may be liable also to punishment
for a breach of the public peace in consequence of the same act,
and in that way may be said, in common parlance, to be twice
punished for the same offense.
Every citizen of the United States is also a citizen of a state
or territory. He may, says the same learned judge, be said to owe
allegiance to two sovereigns, and may be liable to punishment for
an infraction of the laws of either, and the same act may be an
offense or transgression of the laws of both. Thus, an assault on
the marshal, and hindering him in the execution of legal process,
is a high offense against the United States, for which the
perpetrator is liable to punishment; and the same act may also be a
gross breach of the peace of the state if it results in a riot,
assault, or a murder, and may subject the same person to a
punishment under the state laws for a misdemeanor or felony. That
either or both governments may punish such offender cannot be
doubted, yet it cannot be truly averred that the offender has been
twice punished for the same offense, but only that by one act he
has committed two offenses, for each of which he is punishable; nor
could he plead one punishment in bar to an indictment by the other,
for the reason that the act committed was an offense against the
authority of each.
Moore v.
Illinois, 14 How. 13. Two more cases decided by
this Court are to the same effect, and are supported by
substantially the same course of reasoning.
Fox v.
State of Ohio, 5 How. 410;
United
States v. Marigold, 9 How. 560.
In the first case, the indictment was for
"passing and uttering a certain piece of false, base, and
counterfeit coin, forged and counterfeited to the likeness and
similitude of the good and legal silver coin"
called a dollar, passing currently in the state. By the report
of the case, it appears that the defendant, having been convicted,
removed the cause here, and assigned for error that the state court
had no jurisdiction of the offense as defined in the state law. But
this Court held that the state law was valid, that offenders
committing offenses
Page 97 U. S. 538
falling within the competency of different authorities to
restrain and punish them, may properly be subjected to the
consequences which those authorities ordain and affix to their
perpetration.
When examined with care, it will also be found that the second
case decides the same point -- that the same act may constitute an
offense against both the state and the federal governments, and may
draw to its commission the penalties denounced by either as
appropriate to its character in reference to each.
Decided support to that conclusion is also derived from certain
eminent text-writers, as, for example, Mr. Cooley says,
"The states may constitutionally provide for punishing the
counterfeiting of coin and the passing of counterfeit money, since
these acts are offenses against the state, notwithstanding they may
also be offenses against the nation."
Cooley, Const.Lim. (4th ed.) 25.
Corresponding views are expressed by Mr. Wharton, as
follows:
Nor should it be forgotten that an offense may have in such
cases two aspects, so that one sovereign may punish it in the first
aspect, and the other in the second, which is a striking
illustration of the case before the court. Reference is made by the
author to some of the difficulties which arise in such a case, and
he suggests as the means of their solution that "supplementary
jurisdiction is in such cases to be maintained, but that cumulative
punishment is to be avoided by the interposition of executive
clemency." Wharton, Cr.Law (7th ed.) 435; Whiting, War Powers (43d
ed.) 188.
Eminent judicial support to that view is also found in the
circuit court, as exhibited in the opinion of Mr. Chief Justice
Taney.
United States v. Amy. Though unreported in the
volume of his decisions, it will be found published in a note to
the case of
Negro Ann Hammon v. The State, 14 Md. 135.
Congress enacted that if any person shall steal a letter from the
mail, the offender shall, upon conviction, be imprisoned not less
than two nor more than ten years. 4 Stat. 109. Questions of various
kinds were contested, and in speaking of the liability of a party
to be convicted under a state law for the offense therein, the
Chief Justice remarked that in maintaining
Page 97 U. S. 539
the power of the United States to pass this law it is proper to
say that as these letters, with the money within them, were stolen
in the state, the party might undoubtedly have been punished in the
state tribunals according to the law of the state, without any
reference to the post office or the act of Congress, because from
the nature of our government the same act may be an offense against
the laws of the United States and also of a state, and be
punishable in both, and having cited
Fox v.
State of Ohio, 5 How. 10, and
United
States v. Marigold, 9 How. 560, he added, "and the
punishment in one sovereignty is no bar to his punishment in the
other."
These considerations, it would seem, are sufficient to show that
there is no error in the record; but still it is deemed proper to
add, that I am of the opinion that the circuit court had no
jurisdiction to grant the writ of habeas corpus, and that the order
discharging the prisoner is without legal effect. Nothing can be
more certain in legal decision than the proposition that no power
to grant such a writ in such a case is conferred by the fourteenth
section of the Judiciary Act, and it is equally clear that the
power to grant the writ in such a case, and to deliver the
applicant, is not found in the Act of the 5th of February, 1867,
unless the petitioner is restrained of his or her liberty in
violation of the Constitution or of some treaty or law of the
United States.
Barron v. Mayor of
Baltimore, 7 Pet. 243.
Extensive as the differences of opinion are in this case, all
will agree, I suppose, that the decision of the judge that he had
jurisdiction to grant the writ of habeas corpus in such a case is
not conclusive, and if not, then I submit to every person
interested in the question, that it is clearly shown that the
jurisdiction has not been conferred by an act of Congress.
Ex Parte
Milburn, 9 Pet. 704;
Ridyway's Case, 2
Ashm. (Pa.) 247.
Persuasive and convincing confirmation of the dual character of
the jurisdiction in such cases is also derived from the fact that
the military authorities of the United States hold that the
conviction and sentence of such an offender by the proper judicial
tribunal of the state is no bar to the subsequent proceedings of a
court-martial in a case where the criminal act for
Page 97 U. S. 540
which the accused was indicted is also a breach of the rules and
Articles of War. 3 Op.Atty's Gen. 749.
Officers and soldiers of the army who do acts criminal both by
the military and the municipal law are, under certain conditions
and limitations, subject to be tried by the civil authorities in
preference to the military, but the conviction or acquittal of the
party by the civil authorities will not discharge the officer or
soldier from responsibility for the military offense involved in
the same facts.
Steiner's Case, 6 id. 413.
Martial or military law, says Tytler, does not in any respect
either supersede or interfere with the civil and municipal laws of
the realm. Hence it appears that soldiers are, equally with all
other classes of citizens, bound to the same strict observance of
the laws of the country and the fulfillment of all their social
duties, and are alike amenable to the ordinary civil and criminal
courts of the country for all offenses against those laws and
breach of those duties. P. 153.
A former acquittal or conviction of an act by a civil court,
says Benet, is not a good plea in bar before a court-martial on
charges and specifications covering the same. Benet, Courts-Martial
115.
"Assault and battery and homicide," says Mr. Cushing,
"are violations of the municipal laws of the place where
committed, to be tried and punished by the proper tribunal of the
state or Territory whose peace and laws are broken and
offended."
But the military authorities maintain that the same acts being
done by an officer or soldier of the army, over and above the
breach of the local law, is also a violation of the rules and
articles for the government of the army, and that in such a case
the offender is punishable both as a citizen subject to the
municipal law of the place and as an officer or soldier subject to
the rules and regulations enacted by Congress for the government of
the army.
Howe's Case, 6 Op. Att'y Gen. 511; Benet,
Courts-Martial 117;
State v. Yancey, 1 Law Rep. (N.C.)
133;
State v. Woodfin, 5 Ired. (N.C.) L. 199.
Viewed in the light of these suggestions, I am of the opinion
that there is no error in the record, and that the judgment of the
supreme court of the state should be affirmed.