
    Ex Parte HARLAN.
    [HABEAS COBPUS TO OBTAIN JDISCHABGE UNDER CA. SA.]
    1. Privilege from arrest, T>y soldiers and officers in Confederate States army. A commissioned officer in the provisional army of the Confederate States is not privileged from arrest under civil process, under the act of congress of the United States approved March 3, 1799, (U. S. Statutes at large, vol. 1, p. 750, § 4,) which was continued in force in the Confederate States hy the act of the provisional congress approved February 1,1861, nor under any other statute which is of force in this State; and if he can claim such privilege on the ground of public ' policy under the “conscript laws,” (as to which gnome?) he must affirmatively show that he is within the provisions of said “conscript laws.”
    2. Bail process; affidavit hy wife aslagent. — An affidavit to hold the defendant to bail in a civil action, (Code, 5 2175,) may be made by the plaintiff’s wife, as his agent.
    The petitioner in this case sued out a writ of habeas corpus, returnable before tbe probate judge of Montgomery county, on tbe 8tb November, 1864, to procure bis release and discharge from tbe custody of tbe sheriff of said county, whose return to tbe writ was in these words: “That on tbe 7th November, 1864, a summons and complaint, returnable to tbe February term, 1865, of tbe city court of Montgomery, was sued out against said Thomas J. Harlan, in favor of Walter M. Maddox, by one Caroline W. Maddox, tbe agent for said Walter M. Maddox, having first made affidavit, as by law required, that said Harlan was indebted to said Walter Maddox in tbe sum of $6,950 59, and given security for tbe costs of said suit; that tbe clerk of said city court thereupon endorsed on said summons that tbe sheriff should bold tbe defendant (tbe said Harlan) to bail in double tbe amount so sworn to ; that said summons and complaint, with said endorsements thereon, was debvered to said Young, be being then tbe sheriff of said county, on tbe 7th November, 1864, to execute and return; that said sheriff, in pursuance of said summons and complaint, and said endorsement thereon, arrested said Harlan, and required Mm to give bad in double said sum of $6,950 59, and, said Harlan not giving bail in said amount, committed Mm to tbe jail of said county, and now bolds bim under and by virtue of tbe premises aforesaid.” On tbe bearing before tbe probate judge, “tbe said Harlan proved, tbat at tbe time said summons and complaint were sued out, and said affidavit and endorsement were made, said Caroline Maddox, was tbe wife of said Walter M. Maddox, and said Harlan was, and thenceforward bas been, a lieutenant in tbe provisional army of tbe Confederate States, and bad orders from tbe proper officer to report to tbe medical board at Montgomery for examination, witb a view to ascertain wbetber be should be placed on tbe retired list. On these facts, which constituted all tbe evidence adduced on tbe trial, the probate judge decided tbat said Harlan was not entitled to be discharged from custody, and remanded Mm accordingly; to which ruling and decision said Harlan duly reserved a bill of exceptions.” By agreement of record between tbe counsel of both parties in this court, it was admitted tbat tbe facts were correctly stated in tbe copy of tbe bill of exceptions wMcb was made an exMbit to the petition, and tbat tbe court might thereon render final judgment, as on formal returns to tbe writs of habeas corpus and certiorari.
    
    X). Jobdan, and B. F. Lillabd, for tbe petitioner.
    Goldthwaite, Bioe & Semple, contra.
    
   STONE, J.

Although tbe ¡petitioner was not “ at tbe front,” as it is called in military phrase, still we think that» for all legal purposes, be must be regarded as in tbe provisional army of tbe Confederate States. Tbe fact that “be bad orders from tbe proper officer to report to tbe medical board at Montgomery, for examination, witb a view to ascertain wbetber be should be placed on tbe retired list,” can not change Ms legal status. We can not know tbat be will be placed on tbe retired list; and, if so placed, we do not now decide wbetber sucb order would affect tbe question now before tis. — See Acts of 1st congress, 4tb session, p. 203.

By act of tbe provisional congress, (cb. 1, p. 27,) it is declared, that “all tbe laws of tbe United States of America, in force and in use, in tbe Confederate States of America, on tbe first'day of November last,” [I860,] “and not inconsistent with tbe constitution of tbe Confederate States, be, and tbe same are hereby, continued in force, until altered or repealed by congress.” At that time, (November 1st, I860,) tbe act of congress, “for tbe better organizing tbe troops of tbe United States, and for other purposes,” approved March 3d, 1799, was in force and in use in tbe Confederate States, and is not inconsistent with its constitution. — See U. S. Statutes at large, vol. 1, pp. 749-51, § 4. But that statute exempts from arrest only “non-commissioned officers, artificers, privates, and musicians,” and does not exempt commissioned officers. Tbe present petitioner was, at tbe time of bis arrest, a commissioned officer, and hence be is not exempted from arrest by tbe act of March 3d, 1799.

Tbe 19th section of our military code does not protect Mr. Harlan from arrest. That section provides only for tbe militia or volunteers of this State; and it is not pretended that be belongs to either of those classes. We come, then, to tbe conclusion, that there is no statute, which, in terms, exempts tbe petitioner from arrest on civil process.

Tbe court of appeals of South Carolina, during tbe war with Mexico, bad before it tbe question ofhability to arrest of a volunteer officer in tbe United States army; and ruled that, inasmuch as tbe act of congress exempted non-commissioned officers, privates, musicians, &c., and did not mention commissioned officers, tbe latter class were bable to arrest under civil process.—See Moses v. Mellett, 3 Strob. Law, 210.

Tbe same question was before the supreme court of Georgia; and it was conceded that tbe act of congress did not exempt commissioned officers from arrest. That case went off under a construction of their State statute.—See McCarthy v. Lowther, 3 Kelly, 397.

This same discrimination, which exempts from arrest non-commissioned officers and privates, while it leaves commissioned officers exposed to arrest, is found in tbe Engbsb statutes. — See 1st Tidd’s Pr. 198-9.

Looking into tbe doctrine of privilege from arrest, we find it bas a strong root in tbe common law itself, independent of all statute. Barristers, attorneys, suitors, and witnesses, while going to, remaining at, or returning from court as sucb, are of tbis class. This privilege rests on principles of public policy, and is not a mere boon to tbe party privileged.—See 1 Tidd’s Pr. 190, et seq.

Tbe same doctrine bas been frequently recognized in tbis country, and it seems to be conceded tbat it rests on common-law principles, independent of all statutory regulation. See Sadler v. Ray, 5 Rich. Law, 523; Page v. Randal, 6 Cal. 32; Blight v. Fisher, Pet. C. C. 41; Dixon v. Ely, 4 Edw. Ch. 557; Norris v. Beach, 2 Johns. 294; Wood v. Neale, 5 Gray, 538; Cole v. McClellan, 4 Hill, (N. Y.,) 60, and note; Sanford v. Chase, 3 Cow. 381.

"We have found no ease which extends tbe privilege from arrest to officers in tbe army; and from tbis fact, and tbe fact tbat tbe act of congress of 1799 expressly exempts from arrest non-commissioned officers, privates, &c., and omits all mention of commissioned officers, it is contended tbat tbe latter class, to-wit, commissioned officers, must be held amenable to all tbe civil process of tbe country.

If tbis be a question in which only tbe parties to tbe suit are interested, there could be no doubt tbat tbis argument is sound. But we do not regard tbe question as limited in its operation to tbe parties to tbe suit. Under our military system, before conscription became tbe pobcy of tbe country, tbe officers in tbe army were in service from mere choice, and, as a general rule, could resign at any time, and leave tbe service. Speaking of tbe different relations which tbe commissioned officers and tbe privates sustained to tbe service, tbe court of appeals of South Carolina, in tbe case of Moses v. Mellett, (supra,) say: “ Tbe reason for tbe distinction is very manifest in tbe regular army. Tbe service of tbe officer is optional, and honorary. It confers distinction, and is compensated by a bberal allowance to maintain tbe position in society which bis rank in tbe army confers. Tbe privates, &c., are enlisted for a certain period, and are beld to tbe terms of tbeir enlistment, under severe corporal penalties. Among tbem, it is necessary to maintain discipline, by painful constraint and severe penalties. If, by tbe easy expedient of an arrest for debt, tbey could evade service, tbe ranks of tbe army would be continually reduced. Tbe penalties for a violation of tbe rules and regulations for tbeir government, would, by tbis means, be readily eluded, and discipline defeated.” Tbis argument is strongly persuasive to show, that under a conscript system, no sucb distinction between tbe non-commissioned officers on tbe one band, and tbe commissioned officers on tbe other, would bave prevailed; inasmuch as tbe officers, if within conscript age, are as much under restraint, and bave as bttle power to quit tbe service, as tbe privates bave. If tbey resign/ tbey go into tbe ranks. But we bave nothing to do with tbis question. We bave to deal with tbe law as it is — not as it probably would bave been made, under different auspices.

If tbe record before us showed that tbe petitioner is within tbe conscript age, and therefore in tbe Confederate service, whether be will or not to be so, tbe question will arise, Is the conscription of a citizen sucb an appropriation of bis person, time and services, as that no State authority, for tbe mere benefit of a private suitor, can deprive tbe government of tbe same, or so impair tbe right as to materially affect its use? and if tbis question be answered in tbe affirmative, is tbe arrest of such conscript under civil process, issued at tbe instance of a private suitor, sucb a deprivation, as will bring it within tbe rule ? We do not, in tbe present case, propose to discuss either of these questions; for tbe record does not present tbem.

It is a cherished principle in tbis court, that error will not be presumed, but must be affirmatively shown; that we will not presume tbe existence of facts, not shown by tbe record, as a ground for tbe reversal of tbe judgment of a primary court; but that all intendments and presumptions, consistent with tbe statements found in tbe record, will be indulged in favor of tbe correctness of tbe ruling in tbe court below.—See School Comm’rs v. Godwin, 30 Ala. 242, and authorities cited. Tbe present record is silent on tbe question of tbe age of the petitioner. We do not, and can not, know that he is within the conscript age. There are many volunteers in the provisional army, who are not within conscript age, and who are not there by compulsory enrollment. Mr. Harlan may be one of this class; and, hencej he may be in the service only as a volunteer. If so, he does not come within any rule which exempts him from arrest, he being a commissioned officer. In the case supposed, he comes precisely within the rule declared in Moses v. Mellett, and McCarthy v. Lowther, (supra,) and is not exempt from arrest under the act of 1799, or of any other statute known to us.

The petitioner in the present case fading to show that he is privileged from arrest, it is our duty to presume that the primary court had a good and valid reason for the judgment rendered by it; and, hence, we find no error in this feature of the case.

Bail process may be sued out by an agent of the plaintiff; and there was no error in allowing the plaintiff’s wife to act for her husband in this behalf.

The writ of habeas corpus is refused.  