
    Smith against Shaw.
    Where ¿"person not subject to the jurisdiction of a court martial, is arrested, and de-* tained (or trial, for an offence not within their jurisdiction, not only the e persons making the arrest are trespassers, but aiso a commanding officer who ratifies and of— firms their acts, dertateto«orerUm^iaSn? tífán action?06
    Whether a mere refusal to discharge the plaintiff would render the commanding officer a trespasser p Quare* But it seems that a , provostmarshal would not be liable for detaining the plaintiff.
    A citizen of the United States, not in military service, is not amenable to a court martial.
    Where the subject matter of a suit is not within the jurisdiction of a court, all the proceedings are absolutely void, and the officer, as well as the party, is .a trespasser.
    But where the subject matter is within their jurisdicti,on, and the want of jurisdiction is to the person or place, the officer is excused, ualess the want of jurisdiction appears on the process.
    IN ERROR, from the Court of Common Pleas of Jefferson county.
    
      Shaw brought an action of assault and battery, and false imprisonment, against Smith, in the court below. The defendant pleaded not guilty, with notice of special justification, to be given in evidence on the trial. At the trial, in July, 1814, it was proved, on the part of the plaintiff, that, in January, 1814, Sham was arrested, at Adams, distant about fifteen miles from Sachet’s Harbour, by two persons, whose name's were Hopkins and Findley, and carried by them to Sachet’s Harbour. The witness applied to the defendant to get Sham released, and the ri ° defendant said he had a man in the provost guard, by the name - — — of Sham, w ho had been brought there by Hopkins; that he had been confined four or five days, on charges of treason, and of being a spy; and that he, the defendant, should not release Sham, until he had seen Lieutenant Hopkitis, who was expected to return to Sachet's Harbour in eight or ten days; that he, the defendant, was not acquainted with the civil law, but knew the martial law, and should be governed by it; that he should re- ^ grét to keep an innocent man in confinement, and, if he were satisfied of the innocence of ShdW, he would release him. Sham was brought before the defendant, by his order, and stated that' a person of the name of Burr, at Sachet's Harbour, knew. .Mm to be a citizen of the U. States. Smith made some excuse for not then sending for Burr, but said he would send for him the next day, and remanded Sham to the guard house; The witness understood from Smith, that he. was the commanding officer at Sachet's Harbour, The witness, about ten days after, saw Sham at large, in Adams, ^
    Another witness stated, that when Smith was applied to, as above stated* iu: behalf of Sham, he appeared to have forgotten Htó* and observed, that he had been very much occupied; that he regretted to detain an innocent man; but that he must investigate the case, before he could, with propriety, discharge him. It was proved that A/ra?y, (a native of Scotland,') was a naturalized citizen of the United States, and resided, in the county of St, Lawrence at the time of his arrest. ,
    The defendant below, offered to prove* in justification* that on the 6th of January, 1814, the plaintiff below ivas committed by Hopkins and Findley’, then officers in the army of the United States, to the officer commanding the provost guard at Sachet's Harbour, and, by their order, was taken and kept by that officer, in his custody; that Hopkins and Findley, at the time of the commitment of the plaintiff, delivered to the officer of thé guard, a writing signed by them, stating the bhargés ágairist thé plaintiff to be* “ exciting insurrection and mutiny among the good, citizens of the' United States, at the town of Adams, in the state of New-York, on the 6tb of January* 1814 ^ violating his parole as a prisoner of the enemy, and engaging in an illicit trade, to furnish the enemy with necessaries frdm the United States:" ‘ “ Being an enemy’s spy in timé of war, between Great Britain and the United Statesunder which last charge, It was specified, “ making improper and suspicious inquiries Of, and concerning the tnititáiy post at Sachet’s Harbour, in the vicinity of the same; and. for. lurking in and; about said poist, without any apparent cause, of businesSi’’ Thé defend-gilt further offered to prove, that the plaintiff was so committed, and so received,' and detained by the officer of the provost guard; that it was the same detention complained of; and that * the defendant could not legally prevent the said arrest and detention of the plaintiff.
    The court below refused to admit the evidence thus offered by the defendant, in justification; but decided, that it might be received in mitigation of damages ; and witli tliat .direction the causé was left to the jury, who found a verdict for the plaintiff .for 7,79 dollars and 25 c.ents. The counsel for the defendant tendered a bill of exceptions to the opinion of the court below, on which the writ of error was brought to this coprt.
    
      Sterling, for the plaintiff in error,
    contended, that the evidence offered by the defendant, in justification, was improperly rejected by the court. The. defendant below was not answerable for the arrest of the plaintiff. It was made without the knowledge or consent of the defendant,, who knew nothing of the plaintiff, until he was committed to the custody of the officer of the provost guard. Was the-defendant hound to,discharge without any inquiry into the circumstances of the case ? It does not follow', because a person has a command, or control over the arresting officer, that he is responsible to the person arrested, without notice.of his1 being unlawfully detained. Legal notice to the defendant, must be the decision of a court martial, as to the innocency of the prisoner. According to the Jaws and usages of war, the defendant could not have discharged Sham without investigating the causes of his. commitment.
    By the articles of xvar, (80, 81, 82.,) an officer commanding a guard, or provost marshal, is bound to receive and keep any prisoner committed to his charge by an officer of the army, provided such officer delivers an account in writing, signed by .him, of the crime with xvhich the prisoner is charged ; and such prisoner cannot be released “ xvithout proper authority.”
    The “ proper authority,” mentioned in the articles of war, is not the will' and pleasure of the commanding officer, but the .decision of a regular court -martial. It may. he .said, perhaps, that .the defendant did not proceed, according to the articles pf .war, hut discharged the plaintiff, after,xv.ar.ds, on being convinced of his innocence, xvithout any court-martial having been held. If the defendant did so, he acted without proper authority,, and g,t his peril.
    But we contend, that the detention of the plaintiff was not unlawful The plaintiff was charged with being a spy, and with a breach of his pcirole ; these were offences within the jurisdiction of a court martial It is enough to justify the officer, that the subject matter is within the jurisdiction of the court. If the- Court has no jurisdiction as to the person of the party arrested, he must come in and plead it. We do hot pretend that citizens are subject to courts martial for crimes; but if the sub<¡ect matter is Within the lufisdictioh of a court martial-the party . . T n .- must plead, that he is & citizen, and not a soldie.r. In Grant v. Gould,
      
       it was admitted, that a court martial had a right to try and decide the question, whether soldier or hot. Such a power is inseparable from its jurisdiction/ It must, however, take care to decide the question on proper and sufficient evidence.
    But we contend, that the plaintiff^ as to his person, was subject to a court martial; he was an alien, born in the enemy’s country, and, prima facie, was an alien enemy.
    . Again, admitting that the plaintiff was! a naturalized citizen, he might, on the principles of natural and Unalienable allegiance, be treated as a spy. He might be treated according to the laws of his native country. The doctrine of perpetual allegiaiice has been recognised-by our courts. In the case of Isaac Williams, who was:tried in the circuit court of the United States, for the district oí Connecticut, in September, 1799, Chief Justice Ellsworth, adopted the principle and the reasoning of Black-stone, relative to allegiance, or the political compact,1 and considered it as still the common law of this country. He accordingly rejected the evidence offered by the prisoner, to show that he was a naturalized citizen of France.
    
    A court martial had: power to try the question, whether Shan Was a naturalized citizen or not, Citizenship is a plea that might be urged by every person arrested as' a spy, and it must necessarily be.tried by the court martial before whom he is brought. It may be said the articles' of war of the United States speak only of officers and soldiers: so do the mutiny acts, in England; yet courts martial try the question, whether a pérson is a soldier or not.
    
      Again, as io the policy of this doctrine: it is essential to the ° - . 7 rrir* . public safety* Saluspopuh, supremo lex e$t> 1 his is nota doctrine dangerous to liberty, or to the rights of citizens, qualified as it is with the requisites, that there must be a case of necessity, aprobable cause, for the arrest. Silent leges inter arma. In cases which are for the public good, a man may justify doing a wrong; as, in time of war, a person may erect bulwarks on the land of another. A man may justify pulling down a house that is burning, to save the neighbouring houses. Cases of necessity and public exigency are exceptions to the general rules of common law. If the rights of public property may be violated, in time of war, for the public good, why may not the rights of person be violated also ? It is admitted on all hands, that if the plaintiff had been a spy, his detention would have been justifiable and proper. Now, the defendant did nothing more than every officer, in his situation, was bound to do; that is, to make inquiry into the truth of the facts charged against the prisoner, whom it was necessary to detain, until the fact of his being a spy, or not, could be ascertained. - It is impossible for the commanding officer to know whether the person arrested is a spy or not, without investigation.
    But the plaintiff being an alien, born in Scotland, -was, prima, facie, an enemy; and there was, therefore, a probable cause for the detention.
    Again, had not the defendant a right to detain the plaintiff, in order to deliver him over to the civil power, there being a charge of treason against him? The 82d article of war requires every officer or provost marshal, to whose charge prisoners are committed, within twenty-four hours after such commitment, or as soon as relieved from his guard, to report, in writing, to the commanding, officer, the names of the prisoners, their crimes, and the names of the persons who committed them. •
    
      Storrs, contra, (Van Vechten, same side.)
    The plaintiff being, a naturalized citizen of the United States, is, by our law, entitled to all the rights and privileges of a native citizen, without exception. Even in England, an alien naturalized by act of parliament, though incapable of holding certain offices, is in the same state as if he had been born in the king’s ligeance, and is entitled to the same privileges and immunities. The doctrine of perpetual allegiance has no, application to this -case. The question is not between the government of the United States and.that of Great Britain, lout between this govetn$nent :and one of ¡it.® naturalized citizens. The policy of our ¡government has been to protect its naturalized citizens,, not only In this country, but everywhere; and, if they did not receive the same .protection as a native citizen, the act. of naturalization would he -.a cruel mockery.
    ■ Then, what .are the rights and ¡privileges of a native citizen! He is entitled, in every possible case, to proteption from military power. The laws, rules, and articles of war apply ¡exclusively to officers and soldiers, or-such persons as are subject to military jaw, These military ■ courts martial are of very ¡special and -limited jurisdiction. Martial law, as it'is called, is, as Sir Mat* then Hale
      
       observes, in truth, no -law, .but something merely indulged as law., Tiie civil .or municipal law knows no such thing as a military state or military-court. ¿Our citizens, in this respect, are in the same state as "if no war existed. Independent of the mutiny act" in England, or of our act of congress relative to the-army, ño such thing as a court martial or military law is known. Without this special act, a court martial wopld not have power- even to try a spy. Being a spy-is an offence agairist the law of nations, and might .be tried by a court of common law. The second section of the act establishing rules and articles of war, passed April 10, 1806, défines a spy. It-declares, 41 that, in time of war, all persons-not citizens of, or owing allegiance to, the' United States of America, mho shall be found lurking as spies, in or about the fortifications or encampments of ‘the-armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court martial.” It cannot, surely, be -pretended that the plaintiff, a naturalized citizen, could lie treated as a spy. The plaintiff is entitled to all the benefits of our constitution ■and bill of rights. . It is one of the very grievances enumerated in the declaration.of independence; that the-king had affected to render the military independent of, and superior to, the civil power. It is matter of astonishment, that in less than forty years, and in the life of the men who framed that instrument, it should be urged in a court of justice, that this military power can be exercised in this country: in England it would not even be debated.
    The bill of exceptions does not state even that the defendant offered to prove, that the plaintiff was lurking in or about the fortifications or camp at Sachet's Harbour. If the defendant meant to justify, he ought to have pleaded specially, or given notice of the precise facts he intended to prove. The notice states no more than what the defendant offered to prove, namely, that Hopkins and Findley, officers of the army of the United-States, committed the plaintiff to the officer of the guard, or provost marshal; and that the defendant, therefore, had a right to detain him, until he inquired into his case, or had the plaintiff tried by a court martial.
    If the two officers who arrested the plaintiff were trespassers, then the defendant was a trespasser: he must be deemed, by relation, a party to the original arrest; in judgment of law, he was present, and a party to the arrest—every officer and soldier was under his absolute command and control. The plaintiff^ moreover, was brought into the presence of the defendant, and claimed his rights as a citizen, but the defendant ordered him back to the guard house. A moment’s delay, after such a claim, for any cause, was unjustifiable. A military commander, after a claim of citizenship, cannot detain the party, or, if he does so, it is at his peril. The defendant said he knew nothing of the civil law, but should be governed by the martial law.
    Because courts martial have jurisdiction over spies, it does not follow that they have a right to detain and try every person charged as a spy. To make out a justification, the defendant should show that he had jurisdiction over the person of the plaintiff. If a military commander is allowed to be a judge, and to decide the question whether a person is a citizen or not, he has jurisdiction throughout, and may order a court martial, and have the party tried and executed. If such be the law, on what ground did this court issue a habeas corpus, in the case of Stacy, to a military commander, and order an attachment against him, in case he did not discharge the prisoner forthwith? If the commander, in'that instance,, had authority to try, this court could not discharge oh habeas corpus.
    
    But it issaid the defendant might detain the plaintiff, in order to hand him over.to the civil magistrate.. This is a new ground of justification. The defendant did not pretend to bé, a civil or peace officer. It is-the first time we have heard of military commanders being peace officers. An officer of the peace is bound to inquire, arid may justify an arrest, and detention, on probable, cause. A,mere citizen arresting another for a felony, does it at his peril. " But what grounds, or probable causé have been shown by the defendant ? The plaintiff was arrested, fifteen miles' from Sachet’s Harbour, and his. place of residence was more than one hundred miles from that place. . 1 ' ; .
    Again, the facts, in justification were before the jury.
    
      N. Williams, in reply,
    said* the question-was,, whether" the defendant was acting, as a ministerial officer, in a case in, which it was his duty to act. If he was, and he exercised his best judgment, he cannot, by any. principle of law, or doctrine of relation, be made a trespasser. The" defendant merely received a prisoner who had been arrested by officers who had a right to arrest. ' . ' '
    The detention of the plaintiff, before he was reported to the defendant, Cannot be imputed to the defendant. And,1 the defendant had a right, afterwards, to detain the plaintiff a reasonable time, to inquire into the case, and ascertain the truth of his claim to be discharged. And what is a reasonable time, must depend on the circumstances of the- case. Now the Court below decided that the defendant'had no right to detain the plaintiff at all, not that he detained him an unreasonable time.
    Admitting that the defendant had no right to decide the questioti, whether the plaintiff was a citizen or not; we say, that for that very reason," he had a right to detain him, until the: question could be decided by a court martial," or the proper authority. ■
    
      
      
         Lucking v. Denning, 1 Salk. Rep. 201. Cowper, 476. 1 Caines' Rep. 92.
    
    
      
       2 Hen. Bl. Rep. 69. 86.
    
    
      
      
         Noy's Maxims. 23. Plowd. 322. Dyer, 36. b.
    
    
      
      
         1 Bl. Com. 374.
      
    
    
      
      
        Hist. C. L. c. 2. p. 54. ed.)
    
    
      
       Lord Loughborough, in Grant v. Gould, (2 H. Black. 98.)-said, that martial.faro, as described by Enfe .and Blackstane, did not exist ia.JSngland a; all. It had,been exploded for more than a century, as contrary to the constitution. The mutiny act', passed: from tim.e ito-.time, is ¡the authority for courts -martial, which are subject to the-controlling .power of the courts-óf Westminster Hall, ,to prevent any excess of jurisdiction by those special'courts;
    
    
      
       11 Johns. Rep. 121. 158. 160.
    
    
      
      
        Taylor v. Brander, 1 Esp. N. P. Cases, 45.
    
   Thompson, Ch. J.,

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

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

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

Spencer, J.,

(dissenting.) After the fullest consideration, Í am unable to arrive at the same result to which my brethren have come, and must, therefore* dissent from- their opinion. I shall content myself with merely .stating the grounds of my dissent. "■

' It cannot be pretended that the plaintiff in error is at all responsible for- the arrest of AAdró .By. 'Hopkins: and Findley:, and his first imprisonment in the provost guard. The 8.0th article of the act for the establishing rules and articles for the government of the. armies of the United States, provides, that no officer commanding a guard, or provost marshal, shall refuse to receive, or keep, any prisoner committed to his charge, by an offi-. eer belonging to- the forces of the United .States, provided the officer committing shall, at"the same time, deli ver an account, in writing, signed by himself, of the crime with which the prisoner is charged. The 81st article forbids an -officer uomménding; a guard, or provost marshal, releasing any person committed to his charge, without proper authority/ for so doing. The 65th article authorizes’any general .officer, • commanding an army, ©r colonel, Commanding a separate department, to appoint génerai courts martial.

Hopkins and Findley, it - was offered to be shown, were, at the time of Shaw’s commitment,, officers in the army of the United States j -that they committed him- to the officer of the guard, or provost marshal, and at the same time delivered to him an account in- writing, signed by them, of the crimes with which they charged Shaiv, among which was the .following,;, his “ being an -enemy’s spy, in time of war between Great Britain and the United States,” with a specification of his “ making improper and suspicious inquiries of and concerning the military post at Sachet’s Harbour, in the vicinity of the same, and for lurking in and about the said post without any apparent cause or business,’’ . ‘ ’■/

The bill of, exceptions furnishes ho evidence* direct, pre-' sutnptive, or probable, that the plaintiff in error was, in the least, privy to the defendant’s arrest by Hopkins and Findley, or his reception by the officer of the guard, or provost marshal. The 80th article virtually confers on any officer belonging to the forces of the United States, the power of committing, as prisoners, such as have committed offences cognizable by military law. Whether they are responsible for arresting persons not amenable to a military tribunal, is not the present question. It is enough to exempt the plaintiff in error from any liability for the acts of inferior officers, that they have the power to commit offenders for trial, and, especially, when the superior officer has not, in any manner, participated in the act of commitment. The article in question, by requiring the provost marshal to receive any prisoner, committed as the defendant in error was, presupposes the right of any officer to commit; and every officer possesses this right independently of his superior.

To maintain that the plaintiff in error is responsible for such an act, without any privity of his, is, in effect, to maintain that a commanding officer is responsible for every act of an inferior officer or soldier under his command; a doctrine too absurd to require refutation.

It appears from the bill of exceptions that the defendant was a naturalized citizen of the United States, born in Scotland, and then residing in the county of St. Lawrence, and as such, by the 2d section of the Act of Congress of the 10th of April, 1806, was not liable to be tried as a spy ; and it has been contended, that as there was a want of jurisdiction over the person of the defendant, all who were concerned in arresting and detaining him were guilty of false imprisonment.

I am free to admit, that Hopkins and Findley were trespassers. Their act was self moved and voluntary, and at their peril; but I am not prepared to admit that the provost marshal, or the plaintiff, were trespassers. As to the provost marshal, we perceive that the 80th and 81st articles of war require him, under certain conditions, which, in this instance, were complied with, to receive prisoners committed to his charge; and he is forbidden to release them without proper authority for so doing. The case of Badkin v. Powell and others, (Cowp. 476.) is expressly in point. There, an action of trespass was brought against two persons, for taking the plaintiff’s horse and cart, as well as against thepound-keeper, for receiving them: the original taking was admitted to be wrongful; and the .court held, that, as the pound-keeper was bound’to take and keep whatever was brought ¿o him, at the peril of the person who brings it, he was not a trespasser ; and Lord Mansfield said, “it would be.terrible were tie liable to an action for refusing to take cattle in, and were he also liable in another action for not letting them go.” As to the plaintiff in error,fit is urged, that if he be not answerable for the original imprisonment, he made himself so by remanding Shaw to the custody of the provost marshal.

It appears, by the bill of exceptions, -that Shawdtds brought before the "plaintiff in error, who was the commanding officer at ■Sackefs Harbour, when the defendant stated, that a Mr. Bun' knew him to be a citizen of the United States ,• the plaintiff in error made some excuse for not sending for Burr at that time, but said he would on the morrow, and then remanded the defendant in error to the guard; and, in about ten days thereafter, the" witness,- who testified to the above facts, saw the defendant at Adams. ' ■ ¿ ' - , 1

It is manifest, from the bill of exceptions, that the defendant iti error was brought before the. plaintiff in error, at his own request, and with a view of procuring his enlargement without a trial by a qourt martial; the act, then, of going before -the plaintiff, was for the defendant’s benefit. Had the plaintiff in error been merely passive, and refused to: interfere, it seems'to me impossible to consider him as a tort feasor. It does not appear that the plaintiff in error had the power to appoint a general court martial. A spy can be tried only by a general court martial,,and such courts can be appointed only by a general officer commanding an army, or a colonel commanding a separate department. (Art. 65.) There is no proof that the plaintiff in error was a general officer commanding an army, or a colonel commanding a separate department. Before the plaintiff in error can be implicated for not -making the appointment, the defendant in error was bound to show he was the one or the other. If, however, the plaintiff in error had the power, and neglected to exercise it, the case of Salmon v. Percival, (Cro. Car. 196.) is decisive, that cáse, and not trespass, would be the. proper and only remedy." .It comes, then, to this; had the plaintiff in error a legitimate right to discharge the defendant, who had been regularly committed for one of the highest offences, without being ■subjected to a court martial;' and was he bound, upon the mere allegation of the prisoner himself that he was a citizen, to exercise that power ?

I doubt very much, whether the power to discharge a person thus committed, without a trial, resides in any officer; it cannot, and ought not, to be inferred from the fact that the plaintiff in error professed his willingness to discharge the defendant, if innocent, nor from the fact that he subsequently discharged him without a trial. It is one thing for an inferior military officer to obey his superior, and it is another, and quite a distinct consideration, whether he was bound to obey. In analogy to proceedings in the civil tribunals, it is very certain, that a person committed by magistrates, charged with an offence, cannot be discharged from custody, and from the offence, without the intervention of a court, and an investigation into the offence before, at least, a grand jury. I cannot but consider the defendant’s discharge as an act of power, exercised gratuitously and mercifully ; not an act which could have been required.

I have already observed that the plaintiff in error, in ordering the defendant to be brought before him, evidently did so at the defendant’s request, and for his benefit; and it appears that the result was, to accelerate the defendant’s discharge from imprisonment : the remanding the defendant, under the circumstances of the case, amounted to no more than a declining to discharge him on his own allegation. This was not a new or distinct commitment. Had the plaintiff in error gone to the provost marshal, and heard the defendant’s allegations, and declined interfering affirmatively, there could be no pretence to charge the plaintiff as a trespasser. l’!he remanding -was, in effect, no more than a refusal, on the part of the plaintiff in error, to interfere at that time. It appears to me most unreasonable, that the defendant in error, at whose request, and for whose benefit, the act of bringing him before the plaintiff was done, shall make that act, and a declining to interfere, upon the mere naked assertion of the defendant, an independent and substantive act of imprisonment.

What is an officer, circumstanced as the plaintiff in error was, to do ? He finds a man, of whom he knows nothing, charged with an offence, in writing, and under the hands of two of ins officers, with a crime of the most heinous nature, a crime endangering a post of immense importance, a crime punished, as well by our laws as those of every nation, with death: the person thus implicated catisWhiip to be discharged from imprisonment, iipoH the allegation'that he is a citizen; the imprisonment is continued, until the commanding officer becomes satisfied that the allegation of citizenship is true, and then: the prisoner is enlarged. I see no fault, no violation of law, nothing unreasonable, in this procedure. 1 To .hold, that a commanding officer is- bound to-know the fact of citizenship of every person committed by others as a spy,, and that he must instantly release, him, without an opportunity to make inquiry, and! become satisfied of the: fact, is most unreasonable, and I do not believe it to be law.

I have met with no case bearing out the court below in con? sidering the plaintiff a trespasser. I am sensible it has been de-c-ided by the Supreme Court of the United States, (3 Cranch, 337.) that it is a principle, that the decision of a court martial, in a case clearly without its jurisdiction, Cannot protect the officer who executes it. This I do . not think applies to this case, even if the position was indisputable. To give a court complete jurisdiction, there miist be júrisdiction- as well over the person as the offence, or, as applied to civil proceedings, over ¡the cause of action. In Truscott v. Carpenter and Man, (1 Lord Raym. 229.) the court held, that neither the officer nor party are bound to take notice whether the cause of action arose out of the jurisdiction of the court ; and they condemned the resolution in the case of the Marshalsea, as a hard one, arid warranted by none df the books; and say, if the cause of action arose opt .of the jurisdiction of the court, the defendant ought to pleadjt;, and, if he does not, the affair of jurisdiction is o ver, and he-shall not take advantage of it in any collateral action against the plaintiff, or the officer who executes the process. The same doctrine will.be found in Lutw. 937. 1560. and 1 Freem. 322.

It appears to me, that the case of Olict v. Bessey, (2 Sir T. Jones, 214.) has a strong bearing' on - this case. There the plaintiff had been arrested by process, without the jurisdiction of the court; he was.carried within the liberty, and delivered to the defendant, who was a gaoler of the liberty;, and the question was, whether false imprisonment lay.. ■ The court, after many arguments,, held, that the action- did not lie against the gaoler, for he had done no wrong to the party, but that only which belonged to his office, which did'not oblige him to inquire whether the first arrest was tortious or not: even if he had’ been informed of th,e tortious taking, he Ought to" have detained the prisoner, being delivered to him with a good warrant for the arrest. The plaintiff here, is not strictly in the same situation as the provost marshal, not personally having the custody of the defendant. He had, however, a supervisory power over him; and what would justify the provost marshal for detaining the defendant, would justify him. I again repeat it, the plaintiff in error did not make the arrest, and he was under ño obligation to discharge the defendant in error, without a trial by a court martial. The commitment by Hopkins and Findley, was a warrant both to the plaintiff in error and the keeper of the provost guard, for his detention. It would, in my judgment, be most irrational and mischievous, that an officer, in the situation of the plaintiff in error, should be bound first to try, and, at his peril, exercise his judgment on the truth of the charge. The principle contended for pushes the absurdity further: the plaintiff in error is not even allowed to inquire Whether the defendant in error was exempted from a trial as a spy, or not, in consequence of his alleged citizenship. I cannot yield my assent to doctrines so unjust and unreasonable ; and am, therefore, of opinion, that the judgment below ought to be reversed, because the court did not allow the evidence offered to be a full justification.

Platt, J., not having heard the argument of the cause, gave no opinion.

Judgment affirmed.  