McGowan v. Moody , 22 App. D.C. 148 ( 1903 )

Mr. Justice Shepard

delivered the opinion of the Court:

Jurisdiction to issue the writ of habeas corpus is conferred upon the supreme court of the District of Columbia by § 1143 of the Code, which reads as follows:

“Any person committed, detained, confined, or restrained from his lawful liberty within the District, under any color or pretense whatever, or any person in his or her behalf, may apply by petition to the supreme court of the District, or any justice thereof, for a writ of habeas corpus, to the end that the cause of such commitment, detainer, confinement, or restraint may be inquired into; and the court or the justice applied to, if the facts set forth in the petition make a prima facie case, shall forthwith grant such writ, directed to the officer or other person in whose custody or beeping the party so detained shall be, returnable forthwith before said court or justice.”

Other sections relate to the procedure and need not be recited.

If the jurisdiction of the supreme court of the District of Columbia is to be determined by the foregoing enactment alone, it is plain that the petition was rightly dismissed. This is conceded by the appellant, as well also as that the jurisdiction of United States courts in general to issue the writ of habeas corpus, is purely statutory. But it is contended that the supreme court of the District of Columbia is an exception to this rule, and that it is clothed with all the jurisdiction in the premises that belonged to tbe court of King’s bench in England under tbe common law. It is argued that tbe act of Congress of 1801, accepting tbe cession by Maryland of tbe territory now composing the District of Columbia, adopted, together with tbe statutes of Maryland, tbe common law as in force therein; that tbe courts of tbe District, as provided for then, were invested with all tbe common-law jurisdiction of the Maryland courts, as well as with that of tbe Federal courts; that by the act of March 3, 1863, the powers of the former District courts passed to tbe present supreme court thereby created; and that by tbe recent Code tbe jurisdiction of tbe court is confirmed. District of Columbia Code, § 61.

Assuming tbe existence of the general jurisdiction as claimed, it is further contended that tbe proceeding to enforce tbe right of one unlawfully restrained of bis liberty, though under prosecution or commitment for an alleged crime, is a civil proceeding, as held in Ex parte Tom Tong, 108 U. S. 556, 27 L. ed. 826, 2 Sup. Ct. Rep. 871, and that, therefore, tbe jurisdiction to issue tbe writ in tbe particular case is determinable, not by tbe place of detention, but by tbe presence, within tbe territorial jurisdiction, .of the person charged with maintaining that detention, and made respondent in tbe proceeding.

If granted, for tbe sake of tbe argument, that tbe supreme court of tbe District has general common-law jurisdiction unimpaired by the terms of tbe statute, tbe question is raised:— Does that jurisdiction extend to tbe case of any person unlawfully restrained of bis liberty, in a distant possession of tbe United States, by, or under tbe authority of, an officer of tbe Navy acting as governor thereof, because tbe Secretary of tbe Navy, in tbe discharge of bis official duties as tbe bead of that department, maintains bis residence in tbe District of Columbia ?

■ In other words — to give tbe question its necessary scope— has that court jurisdiction to inquire into the grounds of the detention of any and all persons who, it may be alleged, are unlawfully restrained of their liberty by officers of tbe Navy or Army, in any State, Territory, or outlying possession of tbe United States, merely because the respective beads of tbe Navy and War Departments of the Government may he found, and personally served with process, within the District of Columbia ?

On the argument, counsel for the appellant limited their contention to the single case, as presented, of imprisonment on the island of Guam, the administration of which has been committed by executive order to the Navy Department, and for which no civil court has been provided or invested with any jurisdiction. But the broad question as put is necessarily included in the narrow one. If the jurisdiction exists in the one case it must in the others. The question is one of power, and not of the expediency of its exercise in the particular case, because there may happen to be no other tribunal in which relief might be had.

We are compelled to give a negative answer to the question, notwithstanding it may possibly be that the party on whose behalf the petition is presented is restrained of his liberty under the order of a tribunal unknown to the Constitution and law, and is without certain remedy in any other court.

No case has been called to our attention in which it is made to appear that the court of King’s bench ever exercised jurisdiction in a like case, either under or independently of the habeas corpus act of 31 Charles II. Nor have we discovered a single American case in which a similar jurisdiction has been maintained.

The reliance of counsel for the appellant is chiefly upon the expressions of Mr. Justice Cooley in his dissenting opinion in the case of Re Jackson, 15 Mich. 417, 432, reinforced, it is claimed, by several decisions, which we shall proceed to examine in their order.

In Jackson’s case the petition for habeas corpus was presented by guardians of the minor, Samuel W. Jackson, who had been duly appointed by a Michigan court, against Samuel Taff, who, pending that proceeding, it seems had taken the minor from Michigan into Canada, and there detained him, through the agency of his wife, who obeyed his orders. Taff remained in Michigan, was served with process, and appeared, first, with a motion to quash on the ground that the court had no jurisdiction to issue the writ because the petition showed that the unlawful detention was not within the limits of the State, but in Canada. He then made a return alleging that the minor was not detained by him in Canada, but by a guardian that had been regularly appointed for him by a court therein. The entire court, consisting of four members, agreed in discharging the writ because of the allegation of the return, the truth of which was unquestioned. But they were equally divided upon the question whether the court had jurisdiction to issue the writ and require a return thereon, upon a petition, which showed upon its face that the minor was detained outside of the limits of the State, but subject to the control of the respondent.

The question was carefully considered and ably discussed by Mr. Justice Campbell on one side and Mr. Justice Cooley on the other. The former, who denied the jurisdiction, said: “The question then arises, whether the running of this writ is determined by the situation of the person to be relieved, or by that of the persons concerned in the unlawful detention. Among all the precedents, ancient and modern, which I have been able to find, there is none which does not show the question as to whether the writ would run into the privileged places, to have arisen concerning an imprisonment there. No point was ever made upon the service of the writ upon the wrongdoer outside of the place of imprisonment, as making any difference. And there can be no doubt that the legal purpose of the writ is to relieve from the illegal restraint on the ground of its illegality, and on no other ground. * * * The exigency of the writ is to bring up the body, and there is no instance in the law where a writ requires any act to be done beyond the jurisdiction which issues it. If there are attachments and penalties, they all refer to some refusal or neglect to do an act lawfully prescribed; and no one can maintain that if a person, to whom such a writ is directed should do anything abroad towards complying with it he could thereby justify himself against conflicting claims asserted in the foreign jurisdiction. A writ must spend itself in the jurisdiction which issues it; and there is no principle which can give one State a right to consider an act done in another to an individual as an offense against itself.”

On the other hand, Mr. Justice Cooley expressed the opinion that the court of King’s bench in England, to which he likened the jurisdiction of the Michigan court, did not derive its jurisdiction to issue and enforce the writ from the statute; that the statutes were not passed to give the right, but to compel the observance of rights which existed. He then used the following language upon which the appellant strongly relies: “The important fact to be observed in regard to the mode of procedure upon this writ is that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors and set the prisoner free, but the court relives him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp.” This general language, however, must be considered in the light of the context. . The learned justice had already stated the question to which his language was applied, as follows:

“The question nakedly presented, therefore, was whether we had any jurisdiction to relieve from unlawful imprisonment a person, confined beyond the limits of the State, but who was one of our citizens, removed wrongfully to evade process, and for the purpose of the unlawful confinement, and whose jailor was here, and might be compelled to open his prison doors by our order, if we have power to make one.” And in concluding the argument from which we have before quoted, he said: “What I say on this subject is carefully restricted to the case of a citizen of our own State unlawfully held in custody elsewhere by another person, who is himself within the jurisdiction of this court. If lie is here the wrong is being done here, for the wrong is done wherever the power of control is exercised.”

Coming, then, to the return to the writ, which showed that after removing the child to Canada, a guardian had been appointed by a court of that country, he and Mr. Justice Christiancy agreed to the discharge of the writ on the ground that, by reason of the appointment of a guardian for the child in Canada, he was no longer under respondent’s control.

The only authority cited by Judge Cooley in support of his view in regard to the jurisdiction to issue the writ is a decision of the former circuit court of this District. United States v. Davis, 5 Cranch. C. C. 622, Fed. Cas. No. 14,926.

All that appears in the brief report of that case is that upon a writ issued to Davis to produce the bodies of three negroes, alleged to be unlawfully held in custody by him in the District of Columbia, he made return that he had purchased them as slaves for value, believing them to be such; that they had been' removed before the issue of the writ, and are now out of his custody, and, as he believes, beyond the District of Columbia. The court, on January 16, 1840, adjudged the answer to be evasive and insufficient, and committed Davis until he should produce the said negroes. On January 20, Davis brought two of them into court, and it was made to appear that the third had rim away and was in jail in Baltimore. Davis was discharged, and the two negroes were held until they subsequently established their right to freedom.

That case, as reported, does not establish the claim of jurisdiction as presented here. The answer of the respondent was unquestionably evasive. Davis, a resident of the District, had certainly held the negroes in confinement within its limits. His answer was evasive and insufficient in that it did not appear they were not then within the jurisdiction of the court; and his prompt production of two of them, and proof of the escape of the third, indicated clearly that they had remained entirely within his control.

The doctrine of Judge Cooley, as limited by him, has been maintained by the supreme court of Iowa in a case where there was a controversy between husband and wife regarding the custody of two young children. The answer of the husband, one-of the respondents, was to the effect that a few days before the-issuance of the writ, he transferred the custody of the children to his mother, a codefendant, who had removed them across-the line into Missouri, about five miles away; and that he had had no control or possession of them since said transfer. The^ answer was held to be evasive, because it did not appear that, respondent did not have the power to produce the children in. obedience to the writ. Rivers v. Mitchell, 57 Iowa, 193, 10 N. W. 626. A recent English case, in which the purpose to evade-the process was clearly indicated, is substantially to the same-effect. Queen v. Barnardo, L. R. 24 Q. B. Div. 283. In that case a child had been temporarily committed to the respondent who was the founder and manager of a home for destitute-children. Demand for the possession of the child had been made= and persisted in by the mother. Without notice to her, he. delivered the child to a person who removed him to Canada.. Lord Esher, M. R. said that, having parted with the possession illegally before the writ issued, it was not sufficient to discharge-the writ to say that it was almost impossible, for him to produce-the child; there must be an absolute impossibility. Ery, L. J.,. said: “I entirely ágree with what the Lord Chief Justice said on this head in the court below. He said referring to the argument for the appellant, fit is contrary to good sense, because a. person would then only have to break the law and say, “you. cannot put the law in force against me because I have broken it;” a man would only have to take care beforehand to prevent himself from being able to obey a writ, if he thought he was coming to tell the court so, and they could not issue the writ: because the person had already prevented his being able to return to it. He would be able to laugh in the face of the court and to reduce the power and jurisdiction of the court to almost nothing.’ If there be reason to believe that an illegal act has been done in order to defeat the anticipated process of the court, and that on the issue of the writ, the person will ultimately be produced, then, in my opinion,- the writ ought to go. In the present case the circumstances do, in my opinion, afford strong grounds for inferring that that is the real nature of the case.”

The foregoing cases, with the exception of United States v. Davis, which is analogous, involved the right to the custody of minor children who had been removed from the State of their domicil for the purpose of evading the process of the courts to which they were rightfully amenable; and the power to issue the writ upon such showing was maintained, not because the jurisdiction, as in strictly civil actions, depended upon power over the person of the defendant or respondent, but because that person, having attempted to evade the just power of the court over the child detained, might still have it within his power to produce him, so that the court might then exercise its jurisdiction to the extent of final and complete relief.

On account of the special circumstances, — the removal of the party affected to another jurisdiction in order to successfully defy the process of the courts charged with his protection, and the continued detention by the same wrongdoer, who remained within the reach of the court,- — the cases were treated substantially as if the unlawful detention was actually maintained, as it Avas virtually, within the limits of the State.

It may be that the supreme court of the District of Columbia would entertain jurisdiction under like conditions, but as that is not the question now presented we express no opinion in respect of it. None of those conditions exist in the case at bar. The party, on whose behalf the petition has been presented, is not an inhabitant of the District of Columbia; he was not arrested or committed, and has never been confined, within its limits.

Jurisdiction to issue the writ on his hehalf, then, depends upon the single circumstance that the Secretary of the Navy is alleged to have the final control over his imprisonment. It is to this broad claim of jurisdiction that we deny our assent.

But if the jurisdiction of the court were maintainable on the ground claimed, the judgment would nevertheless have to be affirmed. The prisoner is not in the actual custody of the Secretary. The allegation that he is restrained by the agents and subordinates of the Secretary, and is within his control, through the custody of a person unknown, who exercises his authority under the orders of the Secretary, is a conclusion of law. We must take judicial notice of the powers and duties of the Secretary under the Constitution and laws. The officers of the Navy are not his agents. They, like the Secretary himself, are the agents and representatives of the President of the United States, who is the Commander-in-Chief of the Army and Navy. The officers in command of the island of Guam are subject to his orders. Any authority which the Secretary may exercise over them is solely as the representative of .the President, in his name, and as the organ of his will. United States ex rel. Brown v. Root, 18 App. D. C. 239, 242.

The power to relieve the prisoner, or to produce him in obedience to the writ, is in the President, and not in the Secretary of the Navy. The judgment must be affirmed, with costs; and it is so ordered. Affirmed.