Scott v. London.

oath, and therefore, he is not to be affected by the year's residence. The length to which this argument may be carried, shows its sophistry. It leads to the entire destruction of the second section of the act; for if the true owner may come, and make oath, after one year, he *may, after fifty. [*329 The proviso, therefore, must be limited to an importation of the slave with his owner. Upon this construction, it will read thus: "Provided that nothing in this act shall extend to those who shall remove with their slaves, and who shall, within sixty days after such removal, take the oath." But the son did not remove with his slave, and therefore, is not within the benefit of the proviso.

Jones, in reply.-A slave does not, under this act, gain his freedom, unless he was brought in by his true owner. The acquisition of freedom by the slave is a part of the penalty upon the owner, for violating the law. The freedom can only be acquired in a case where the owner is liable to the penalty of $200, under the 3d section. When the owner and the slave do not come in at the same time, the sixty days begin to run from the time of the removal of the master. If the owner comes, before the slave has resided one year in Virginia, it is sufficient.

February 19th, 1806. MARSHALL, Ch. J., delivered the opinion of the court. This case arises under a clause in an act of the Virginia assembly, giving freedom to slaves who shall be brought thereafter into that state, and kept therein one whole year together, or so long at different times as shall amount to one year; and under a proviso of the same act, that it shall not extend to any person who may incline to remove from any of the United States, and become citizens of this, if, within sixty days after such removal, he shall take an oath which is prescribed in the act.

The negro London was brought from Maryland into Alexandria, where he was hired out, in the year 1802; some months after which, his master, the plaintiff in error, also removed into Alexandria, and within the [*330 *year from the time the negro was brought in, and also within the sixty days from the time the plaintiff in error removed to Alexandria, the oath prescribed by the law was taken.

No right to freedom having vested in London, at the time this oath was taken, the question is, has it brought the plaintiff within the proviso of the act? That the plaintiff is within the letter of the proviso, is unquestionable. He is a person who inclined to remove from one of the United States, into Virginia, who actually did remove, and who took the requisite oath, within the limited time.

But it is contended, in behalf of the defendant in error, that the acts of bringing the negro into the state, and of removing into it, must be concomitant, in order to bring the case within the proviso: or, in other words, that the owner must be a person "inclining to remove into the state," at the time the slave was brought in. This inaccuracy of construction seems to be founded on the idea, that the penalty of forfeiting the property accrues on bringing the slave into the state, whereas, it attaches on his continuance in the state for twelve months. Until such continuance has taken place, the offence has not been committed. If, then, all the acts which bring a person within the proviso, are performed, before the right to freedom is vested, and before the provisions of the act have been infracted,

Wise v. Withers.

it seems to the court, that the rights of the party remain unaffected by the act. If London had been ordered to Maryland for a day, and then brought with his master into Alexandria, the construction of his counsel would be satisfied; and it seems strange, where the letter of a law has not been violated, that such an unimportant circumstance should affect its spirit. Unless this mode be admitted of coming within the proviso, a person inclining to remove into Virginia, whose slaves had preceded him, though not for one year, could not bring himself within, or avoid the forfeiture, *331] although permitting them to come into that state was no *offence; a construction of the act which the court cannot think consistent with its spirit or letter.

This court is, therefore, of opinion, that the circuit court erred, in directing the jury that, under the circumstances stated, the plaintiff below was entitled to his freedom, and doth reverse the judgment rendered by the circuit court, and remand the cause for further proceedings.

Judgment reversed.

WISE V. WITHERS.

Militia duty.-Sentence of court-martial.

A justice of the peace in the District of Columbia is an officer of the government of the United States, and, as such, exempt from militia duty.

A court-martial has not exclusive jurisdiction of that question, and its sentence is not conclusive. Trespass lies against a collector of militia fines, who distrains from a fine imposed by a court-martial, upon a person not liable to be enrolled in the militia-the court-martial having no jurisdiction in such cases.1

Wise v. Withers, 1 Cr. C. C. 262, reversed.

ERROR to the Circuit Court of the district of Columbia, in an action of trespass vi et armis, for entering the plaintiff's house, and taking away his goods. The defendant justified as collector of militia fines. The plaintiff replied, that at the time when, &c., he was one of the United States' justices of the peace for the county of Alexandria. This replication, upon a general demurrer, was, by a majority of the court below, adjudged bad; whereupon, the plaintiff sued out a writ of error, and the questions made on the argument were

1. Whether a justice of the peace, for the county of Alexandria, was liable to do militia duty? and—

2. Whether an action of trespass will lie against the officer who makes distress, for a fine assessed upon a justice of the peace by a court-martial?

1 But see Shoemaker v. Nesbit, 2 Rawle 201, where it is ruled, that if a court-martial, acting in good faith, convicts a person, not subject to militia duty, of the offence of non-attendance at training, neither the members of the court, nor the officer who executes their sentence, are liable as trespassers ab initio. Chief Justice GIBSON there says, that the court must necessarily have power to decide upon the question of liability to military duty, which is the subjectmatter; and therefore, an erroneous decision

will not render them responsible in trespass. And see Savacool v. Boughton, 5 Wend. 179-80 where the soundness of the decision in Wise v. Withers is strongly questioned. And in Dynes v. Hoover, 20 How. 65, it is held, that where a court-martial has jurisdiction over the subjectmatter, and its proceedings are in a regular course of law, the officer who executes its sentence will be protected. See also Vanderheyden v. Young, 11 Johns. 150.

Wise v. Withers.

C. Lee, for the plaintiff in error.-This case depends upon the act of congress of March 3d, 1803, entitled "an act more effectually to provide for the organization of the militia of the district of Columbia" (2 U. S. Stat. 215). *The 6th section says, "that the commanding officers of com[*332 panies shall enroll every able-bodied white male, between the ages of eighteen and forty-five years (except such as are exempt from military duty by the laws of the United States), resident within his district."

The act of congress of the 8th of May 1792, § 2 (1 U. S. Stat. 272) exempts from militia duty the vice-president of the United States; the officers, judicial and executive, of the government of the United States; the members of both houses of congress, and their respective officers; all custom-house officers, with their clerks; all post-officers, and stage-drivers, who are employed in the care and conveyance of the mail of the post-office of the United States; all ferrymen, employed at any ferry on the post-road; all inspectors of exports; all pilots; all mariners actually employed in the seaservice of any citizen or merchant within the United States; and all persons who now are, or may hereafter be, exempted by the laws of the respective states." This act applies not only to such officers as then existed, but to all such as might thereafter be created.

If the plaintiff is an officer, judicial or executive, of the government of the United States, he is exempted.

In Marbury's Case, 1 Cr. 168, this court decided, that a justice of the peace, for the district of Columbia, was an officer, and that he became such as soon as the commission was signed, sealed and ready to be delivered. If the commission, therefore, is a criterion to decide who is an officer, we are at a loss to conceive what objection can be taken. The justices of the peace for the district of Columbia are appointed by the President of the United States, by and with the advice and consent of the senate, and are commissioned by the president. Their powers and duties are prescribed by the act of congress, "concerning the district of Columbia," § 11 (2 U. S. Stat. 107). Whether those powers are judicial or executive, or both, is immaterial.

*Jones, contrà.—1. A justice of the peace, in the district of Colum[*333 bia, is not a judicial officer of the government of the United States. By the act of congress, those appointed for the county of Alexandria are to exercise the same powers and duties as justices of the peace in Virginia. The expression in the act of 1792, "officers judicial of the government of the United States," means only the judges of the supreme and inferior courts of the United States. Justices of the peace in the states are not considered as judicial officers. By the constitution of Massachusetts, the judicial officers are to hold their offices during good behavior, and yet the commissions of justices of the peace are limited to seven years. So the constitution of the United States says, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior; but by the act of congress, the justices of the peace in the district of Columbia are to hold their offices only for five years. These justices, therefore, are either not judges, or the constitution has, in this respect, been violated. It is plain, however, that congress did not consider them as judges. A sheriff sometimes acts as a judicial officer in holding elections; and some of the officers in the execu

Wise v. Withers.

tive departments exercise judicial functions in many cases, but they are not, therefore, judges. An act of congress may give judicial powers to certain officers, but they are not, therefore, judges.

2. He is not an executive officer "of the government of the United States." This description was intended, by the act of 1792, to comprehend only the officers of the superior departments, or those which strictly constitute the government of the United States, in its limited sense. This is to be inferred, because the act goes on to enumerate, by name, all the inferior officers which it meant to exempt. Why enumerate, if the general description comprehended the whole?

3. The circuit court of the district of Columbia has not jurisdiction of *334] this question. The question who is *to be enrolled in the militia, and the assessment of the fines, are matters submitted exclusively to the courts-martial, which are courts of peculiar and extraordinary jurisdiction, specially appointed for that purpose, by the act of congress (2 U. S. Stat. 217, § 8). The words are, the "presiding officer shall lay before the said court (the battalion court of inquiry) all the delinquencies, as directed by law, whereupon, they shall proceed to hear and determine." There is no provision for revising the decisions of those courts-martial. They are final and conclusive, like those of an ecclesiastical court, or a court of admiralty.

If they have jurisdiction, and especially, if they have exclusive and final jurisdiction in the case, the officer who executes their orders is justified. He cannot be considered as a trespasser.

C. Lee, in reply.-There can be no doubt but the plaintiff is an officer. There can be as little that he is an officer judicial or executive, or both; and if he is not an officer of the government of the United States, he is not the officer of any other government. There is no distinction between an officer of the United States and an officer of the government of the United States. An officer appointed by the President of the United States, to an office created by a law of the United States, and exercising his authority in the name of the United States, must be as much an officer of the government of the United States, as any other officer in the United States. The reason of enumerating other officers by name was, because it might, perhaps, be doubted whether they would come under the general description of officers judicial and executive.

As to the jurisdiction of the circuit court. A limited power given to certain tribunals, not extending to all persons, cannot control the general jurisdiction given to that court. Whenever a peculiar limited jurisdiction

*335] is given to certain persons, and they exceed it, not only their *officers, but they themselves are liable to an action. They are all subject to the general law of the land. If this were not the case, and a court-martial should compel a man of more than forty-five years of age, for example, to perform militia duty, and continue to fine him from time to time, there would be no redress.

The court-martial, in the present case, had no jurisdiction over the person of the plaintiff. He was exempt, and therefore, they could delegate no authority to their officer.

February 19th, 1806. MARSHALL, Ch. J., delivered the opinion of the

Wise v. Withers.

court. In this case, two points have been made by the plaintiff in error. 1st. That a justice of the peace in the district of Columbia is, by the laws of the United States, exempt from militia duty. 2d. That an action of trespass lies against the officer who makes distress, in order to satisfy a fine assessed upon a justice of the peace, by a court-martial.

1. Is a justice of the peace exempt from militia duty? The militia law of the district refers to the general law of the United States, and adopts the enumeration there made of persons who have this privilege. That enumeration commences with "the vice-president of the United States, and the officers, judicial and executive, of the government of the United States."

It is contended by the plaintiff, and denied by the defendant, that a justice of the peace, within the district, is either a judicial or an executive officer of the government, in the sense in which those terms are used in the law. *It has been decided in this court, that a justice of the peace is [*336 an officer; nor can it be conceived that the affirmative of this proposition, was it now undecided, could be controverted. Under the sanction of a law, he is appointed by the president, by and with the advice and consent of the senate, and receives his commission from the president. We know not by what terms an officer can be defined, which would not embrace this description of persons. If he is an officer, he must be an officer under the government of the United States. Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government.

But it is contended, that he is not an officer, in the sense of the militia law; that the meaning of the words "judicial and executive officers of the government," must be restricted to the officers immediately employed in the high judicial and executive departments; and in support of this construction, the particular enumeration which follows those words is relied on; an enumeration which, it is said, would have been useless, had the legislature used the words in the extended sense contended for by the plaintiff. A distinction has also been attempted between an officer of the United States and an officer of the government of the United States, confining the latter more especially to those officers who are considered as belonging to the high departments; but, in this distinction, there does not appear to the court to be a solid difference. They are terms which may be used indifferently to express the same idea.

If a justice of the peace is an officer of the government of the United States, he must be either a judicial or an executive officer. In fact, his powers, as defined by law, seem partly judicial, and partly executive. He is, then, within the letter of the exemption, and of course, must be considered as comprehended within its proper construction, unless there be something in the act which requires a contrary interpretation. The enumeration which follows this general description of officers, is urged as furnishing the guide which shall lead us to the more limited construction. But to this [*337 *argument it has very properly been answered, by the counsel for the plaintiff, that the long enumeration of characters exempted from militia. duty which follows, presents only one description of persons; custom-house officers, and those who hold a commission from the president, or are appointed by him and of these by far the greater number do not hold such commis

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