
    *The Attorney General v. Fenton. The Same v. Shepherd.
    Decided, Dec. 10th, 1816.
    Statute — Habeas Corpus — Construction,—The Act of January 10th, 1815, on the subiect of Writs of Habeas Corpus, does not authorise the issuing1 of a Writ of Error by the Court of Appeals to a Judgment discharging from custody a person confined, by sentence of a Court Martial, for failing to pay a fine, imposed upon him, for not appearing at the place of Rendezvous, and not marching, in obedience to a requisition of Militia; for in such case, there is no discharge, by the Judgment, of a person from the service of this State or of the United States.
    Among the minutes of a Court Martial convened by Lieut. Colonel Beatty of Frederick County, 31st Regiment Virginia Militia, under authority of “an Act to amend the Militia Laws of this Commonwealth,” passed February 14th, 1814, the three following entries appear, viz. : “At a Court Martial, held at the Court-house in Winchester, on Thursday, the 10th day of November, 1814, agreeably to the adjournment of the 24th of October, by order of Lieut. Colonel Henry Beatty, for the trial of such persons, as failed to appear at the place of Rendezvous, and march, under the late requisition of July 20th, as also those, who failed to march with Captain Darlinton under orders of 31st March last; Present Lieut. Colonel Henry Beatty, President; Major Joseph Sexton, Major Charles Brent, Captains Sanford, Roberts, Baldwin and Darlinton. Colonel Beatty administered an oath to the members impartially to decide on all matters, that shall come before them; and Major Sexton administered the same oath to Colonel Beatty. The excuse of Josiah I. Fenton being heard and considered insufficient, it is ordered that he be fined forty-eight dollars, being six months pay. Ordered, that the persons this day fined, be imprisoned one calendar month for every five dollars of the fines imposed on them, in case they fail to pay the same, or in proportion of such part thereof, as they shall fail to pay.” A certificate of these two last orders, (signed by the Clerk of the Court Martial, not by the President,) was delivered to the Sheriff of Frederick.
    Fenton failed to pay the fine: The Sheriff took him in custody: he applied to the Superior Court of the County for a Habeas Corpus, which was awarded; and the Sheriff returned the above certificate as the warrant and cause of detention. The minutes of the proceedings of the Court Martial being produced in Court, the three Entries above quoted appeared.
    The Superior Court pronounced the following opinion: “It seems to the Court here that it does not appear from the said ^proceedings, that any specific charge was exhibited against the said Josiah I. Fenton, of of what, in particular, the crime, for which he was fined a-pd directed to be imprisoned as aforesaid, consisted. But, so far as the Court can discern the nature thereof, it would seem that, being called forth into actual service by some legal requisition, he was charged with having failed to obey such call. By the statute of 1804, ch. 36, sect. 43, it is enacted that, Whenever any Militia shall be called forth into actual service, they shall be governed by the articles of war, which govern the troops of the United States, and Courts Martial shall be held, as therein directed, to be composed of Militia Officers only.’ ‘And although the statute of 1814, ch. 4, has, for obvious reasons, directed that, in the cases contemplated by it, those Courts Martial shall be ordered by and composed of officers not in actual service, and has designated the number and rank of the officers, who may compose them, it does appear to the Court here, that it has not interfered farther with the prior laws upon this subject, or made any other new regulations respecting the mode of proceeding df such Courts, but has left them to be governed in other respects by the laws, which were in existence at the time of passing that statute, and, more particularly, with respect to the oath to be taken by the members, when such Courts are constituted; on which subject the statute of 1814 is entirely silent. And yet it appears by the the 28th section of the Act of 1804, that the Legislature considered the oath prescribed by the Articles of War, as an important part of those proceedings, and not to be departed from, but by the authority of express law. And it also appears by the statute of 1792, ch. 57, sect. 2, that the Legislature has expressly declared, that ‘no person shall have power to act in any office, legislative, executive or judiciary, without taking such of the oaths prescribed by that Act, if another be not specially prescribed, as is adapted to his case. A’nd the Court also recollecting, that it is a principle of common law, that oaths prescribed by statutes cannot be qualified, but must be taken in the very words of the statute; and it appearing to the Court ■ here, from an inspection of the proceedings of the said Court Martial, that neither the oath prescribed by the said articles, nor any oath known to or “prescribed by any law of this Commonwealth, was, either in form or substance, administered to the members of the said Court Martial; but that the oath, administered to them, was essentially and materially variant from them, and every of them; it is the opinion of the Court here, that the said Court was not legally constituted, and therefore had not jurisdiction of the said case and was by the law of the land, denied all power to act therein. And thereupon the said Josiah X. Fenton is discharged from custody. And it is considered by the Court, that he pay to the officers of this Court their respective fees, for their services respectively rendered to him in this behalf.”
    To which Judgment the Court of Appeals, on motion of ■ the Attorney General, awarded a Writ of Error, which was applied for under the Act of January 10th, 1815, sect. 11.
    
    The case of Shepherd was similar to that of Fenton ; except that it did not appear, that Shepherd had any notice of the accusation against him, or of the sitting of the Court Martial; or that any process was issued to bring him before it; and, from the examination of the Clerl? of the Court Martial, it appeared that the proceedings in his case were altogether ex parte; whereupon, he was discharged from custody by order of the Superior Court of haw.
    These cases were argued together by Nicholas (the Attorney General,) in s'up-port of the Writs of Error, and by Leigh on the other side, on the 29th and 30th days of October, 1816: but none of the points made in this argument were determined by the Court.
    Friday, November 29th, the Court requested a re-argument on these points.
    1st. Whether the defendants in error were so “in the service of this State,” and so discharged from that service, as to authorize an application by the Attorney General for a Writ of Error, under the 11th Section of the Act of January 10th, 1815.
    2d. In the event of this Court’s having Jurisdiction in the case, it is farther worthy of more particular inquiry whether the term of imprisonment, which ensues the non-payment of the fine, should not be ascertained by a subsequent Court Martial, “instead of being left to the officer to say whether, and how much of the fine has been paid.
    Upon these points, a re-argument was had in the absence of the Reporter.
    
      
       See generally, monographic mote on “Habeas Corpus’’ appended to Ex parte Pool, 2 Va. Cas. 276.
    
    
      
       Acts of 1814-15, ch. 26, p. 68.
    
   December loth, 1816,

JUDGE ROANE

pronounced the Court’s opinion, as follows:

The Court, (not deciding whether the Act of January 10th 1815, concerning Writs of Habeas Corpus, gives a right of appeal to this Court, by means of a Writ of Error to the defendant to such Writ of Habeas Corpus, as well as to the prisoner, in the case of a confinement like that now in question,) is of opinion, that the right of appeal, given to the Attorney General by the 11th Section of the said Act, is confined to the case of persons held in service of this State, or of the United States; by which the Court understands military service, or at least a service different from, and of greater urgency than the confinement of the Appellees now in question. On this ground, the Court is of opinion that the said Act did not warrant the Writs of Error in these cases; and they were improvidently awarded. It is therefore ordered that the same be dismissed.  