author: Christiancy J.: Martin Ch. J.:

text:
    The People v. Daniel Millspaugh.
    An act of carnal intercourse with an unmarried -¡woman, to which her assent was-obtained by a promise of marriage made at the time, and to which without such promise she would not have yielded, constitutes the offense of seduction under the statute.
    Accordingly where a woman was seduced in 1860, on a promise of marriage, and the intercourse was afterwards broken off, but was renewed again on the promise of marriage being renewed, and only in consequence of such promise; it was held that a prosecution might be commenced for the seduction at any time within one year from such last intercourse.

      Heard April 11th.

      Decided May 12th.

    On exceptions from the Recorder’s Court of Detroit. The case is fully stated in the opinion of Justice Christiancy.

      L. Bishop, for defendant:
    There can be no such thing as a criminal seduction in tbe last one of the two years during which the parties indulged in a free and unrestrained intercourse with each other.
    To constitute the crime, the complainant must have been in the path of virtue when the alleged seduction in fact took place, which under the statute must not have been over one year before the prosecution was instituted,, and she must have been led aside from that path by the defendant. But after the first intercourse the complainant was not in such a condition of virtue that she-could be seduced by defendant. Another man might, perhaps,, have seduced her as to himself and others. A woman may be incontinent' as to' one man, and not so, perhaps, as to another man; but she can not, in such a case, be seduced by ber paramour. As to him there is no change in her course of life. As to him her life is uniformly vicious. In the case at bar it was such for nearly two years. That uniformity of vice in the complainant was not changed by the defendant. He may have been the original cause of it, but that question'is not now in issue, and can not now be tried by reason of the lapse of time.

      To constitute this offense “there must be actual elicit intercourse, and the female must be drawn aside from the path of virtue which she was honestly pursuing at the time the defendant approached her” Whart. Cr. L. 762, noteb. To seduce a female “is universally understood to mean an enticement of her on her part to a surrender of her chastity:” — 27 Conn. 319; 17 Penn. 608. A girl tobe criminally seduced must be of good repute, and of virtuous life. She must be actually chaste and pure at the time of committing the offense. 8 Barb. 603. What path of virtue was this complainant in, and what chastity and pttrity had she, with regard to this defendant, for two years prior to this prosecution; and from what path of virtue, and from what chastity and purity did he seduce her in that time? If she had at any time reformed, and had become chaste, she might perhaps have been seduced over again; but nothing of the kind is claimed in this case. 8 Barb. 603.

      H. M. & W. E. Cheever, for the people:
    It is not necessary under our statutes, to constitute the crime of seduction, that the woman should have been from her infancy of pure and spotless character or reputation. The fallen, if reformed, is as much the subject of seduction, and her case as fully within the statute, as that of the purest girl living. 2 Bish. Cr. L. 1019; 8 Barb. 603. Our statute is materially different from that of New York and Pennsylvania, in which the words are, “ seduce and debauch any woman of previous chaste character,” while in‘our statute they are, “ seduce and debauch any unmarried woman.” Yet in 8 Barb. 603, the Court say “previous” in the connection there used must mean immediately pre. vious, so that it would seem to be a question even under the statute of that State whether the character of the prosecutrix at any other time than immediately previous to the guilty conduct of defendant was in issue.
   Christiancy J.:

The defendant was tried on an information filed October 3d, 1862, charging him with having, on the third day of March, 1862, seduced and debauched one Mary Taylor, an unmarried woman. The complaint on which the information was based was made July 11th, 1862. The statute R. S. of 1846, Ch. 158 § 1; Comp. L. Ch. 185 § 1 — provides that no prosecution shall be commenced after one .year from the time of committing the offense.

The evidence (which was unimpeached and uncontra■dicted) tended to show that the first sexual intercourse between the parties took place on the eighth day of July, 1860, when the complainant was not over sixteen years of age; that he had frequently solicited such intercourse before, but she had always refused, and finally yielded only in consequence of, and relying upon, his promise to marry her the next New Tears, and his assurance that he would never think the less of her; that for the next three weeks this improper intercourse was repeated every, two or three days, the defendant living at the house of her step father where she resided with her mother; that •after this she (lid not see the defendant again for some months, when he again renewed his visits, about once in two weeks, till the month of" November, 1861; that at each of these interviews the like intercourse was repeated, that he then left again, and she did not see him till Christmas, when (or within the week after) the same intercourse was renewed, and continued till April 1862; that she became pregnant from an intercourse which occurred on or about the third day of March, 1862. It appeared •clearly from the evidence that at every act of intercouse the promise of marriage was renewed; that she placed full,, reliance upon it, and that it was on this account alone that she yielded to his desires. He had at first fixed the time for the marriage for the first of January, 1861, which he afterwards put off till the first of January, 1862; after which, though no time was fixed, he still assured her of his intention to marry her. He had given her his portrait and various presents, and twice gave her money which he said he gave her that she might not have to work out. About the first of April, 1862, she informed the defendant of her condition, when he said he did not think it could be so, and at once ceased to visit her. That two or three weeks after this she again informed him of the same, when he inquired why she did not tell her mother and get rid of it. That after the fourth of July, 1862, she again told him her condition, and asked him what she should do, to which he replied he did not. know what she asked him for.

There is no pretence that she ever had sexual intercourse with any other man, and, so far as is shown by the evidence, her character appears to have been pure-with the exception of her intimacy with the defendant.

Upon this evidence the Court was asked to charge, that if the seduction charged was complete on the 8th day of July, 1860, more than two years previous to the prosecution, they should find the defendant not guilty.' This was refused; but the Court in answer to this request charged, that “a seduction might have been complete on the 8th of July, 1860, but another seduction might have been committed since then.”

The Court was further requested to charge, that “the mere act of illicit intercourse on March 3d, 1862, was not of itself sufficient to constitute the crime of seduction; but the complainant must have been led astray from the path of virtue in which she then was, by inducements offered by the defendant.” Also that “the free intercourse between complainant and defendant for about two years should be considered by the jury as tending to show that there was no seduction at all.” These requests were refused; but, in answer to them, the Court did charge that, “even if the jury believe the complainant was seduced and debauched by the prisoner more than a year before the commencement of this prosecution, yet they cannot find a verdict against the prisoner” (meaning, as the context shows, for that seduction); “ but if they believe from the whole evidence that the prisoner had sexual intercourse with said^Mary Taylor, and that such intercourse was had •on the third of March, 1862, or at any other time within the period1 of one year next preceding the commencement of the prosecution, under, and in consequeuce of, a renewed promise of marriage then, at the time, made, the offense was complete, and they may find the prisoner guilty.”

We think this charge was fair and correct in every particular, and that it fairly met every material point raised by the requests to • charge.

It is clear that any instance of seduction within the year would be sufficient to sustain the information, though we do not intend to say that the offense necessarily consists of a single act of intercourse, nor that the evidence should be thus confined.- The whole course of conduct between the parties had been inquired into without objection, and no complaint is made or exception taken on that ground. The particular day alleged in the information was immaterial. Under this charge the jury could not have found the defendant guilty without having found, that, as to at least one of the acts of intercourse proved within the year, the complainant had been induced to yield her assent solely by the renewed promise of marriage made to her at the time, and that, without such promise, she would not have been induced to yield to his desires. The evidence (to which no objection was made) fully warranted this finding; and we think it entirely clear that, under our statute (which is much broader than the statutes of New York, -Pennsylvania, Wisconsin and some other states), any one act of carnal intercourse to which the complainant’s assent was obtained by a promise of marriage made by the defendant- at the time, and to which, without such promise, she would not have yielded, constitutes the offense provided for by the statute* as clearly as if it were the first act of such intercourse induced by the like promise. If the first act would constitute seduction, because her assent was obtained by such promise, we can discover no good reason why the second or any subsequent intercourse, to which her assent was obtained only by the same means, will not equally constitute the like offense.

As to the character for chastity or personal virtue, which it is insisted she must have had at the time in order to make her a competent subject for seduction — - while we express no opinion as to a female who is shown to be unchaste with other men — we think all that is necessary in a case like the present, where there is no such evidence, is, that her personal character should be such as to satisfy the jury that she would not have yielded in the' particular case without the express promise of marriage. To require any higher standard of virtue would be to nullify the statute, by making seduction impossible in any case, as well in reference to the first, as to any subsequent act of intercourse.

The case calls for no opinion, and we express none upon the point, whether the result would have been different, had the jury found that an express promise of marriage had only been given at the outset, and that her assent was given in every subsequent instance only in consequence of, and reliance upon that promise.

There is no error in the proceedings of the Court below, and that Court should proceed to give judgment upon the verdict. Let it be so certified to that Court.

Manning and Campbell JJ. concurred.

Martin Ch. J.:

I can not concur with my brethren in the view they take either of the law or the facts of this case. I shall not recapitulaté the evidence, but content myself with saying, that I can-discover no evidence of seduction and debauchery except such as was consummated some eighteen months or more before the filing of this information. For that period of time the prisoner and complaining witness seem to have had illicit intercourse as opportunity offered, and without objection, resistance, or even reluctance — so far as the case shows — upon her part; and, as I think from an examination of the -testimony, without any thought or expectation of marriage by either for some six months before the time fixed in the information as that of their last intercourse. Were it not for the disastrous results of the interview on the third of March, I apprehend that no charge of seduction would ever have been made; nor would there have been any had the defendant settled as desired. It is a little remarkable, if the girl relied upon a promise of marriage, that after she found herself pregnant she should never have demanded or even asked marriage; hut was only solicitous to hide her shame, and only asked his advice to that end; and that her friends only subsequently interposed., to obtain a settlement; that is, as I understand it, to get pecuniary compensation for her disgrace, .and indemnity for the expenses expected to follow.

I think the Judge below erred in his instructions to tljp jury, which tended to mislead them; and that the requests of the defendant should have been granted.


source: Caselaw Access Project

author:
Campbell J.:
      Manning J. Christiancy J.:

license: Public Domain

text:
    Jane Dunn v. Jonathan F. Dunn. Jonathan F. Dunn v. Jane Dunn.
    The veVdict of a jury on an issue out of chancery has no binding force, and a new trial will be ordered upon much slighter grounds than in an ordinary action at law. Per Campbell J.; Martin Oh. J. concurring.
    And the Court may entirely disregard the verdict and make a decree against [it, notwithstanding it satisfies the Judge who tried the cause.,

      An issue awarded at tlie.hearing in chancery to be tried by jury, must be con» fined not only to facts put in issue by the pleadings, but to facts concerning which some testimony has already been introduced and read at the hearing, Per Campbell J.; “Martin Oh. J. concurring.
    Where, therefore, the pleadings in chancery put in issue adultery committed by one of the parties in April, May and June, 1858, but no testimony was taken tending to show its commission in April, and at the hearing issues were framed for trial by juiy covering the months named, and also December and January preceding, such issues, so far as they related to the months of December, January and April, were irregular, and a general verdict of guilty rendered thereon must be disregarded. Her Campbell J.; Martin Oh. J. concurring.
    Christianoy J. concurred in holding the issues- irregular so far as they related to time not covered by the pleadings; but as no evidence was given on the trial of transactions outside the pleadings, he was of opinion that the verdict should not be disregarded because of the issue being too broad.
    Where in a case in chancery several issues are framed for trial by jury, each issue must be passed upon by the jury separately. Per Campbell J.-; Martin Oh. J. concurring.
    Evidence having been given to establish the fact of adultery at a time named, the alleged pariiceps criminis was called to disprove it, and denied its commission. He was asked on cross-examination if he had not stated, the year before ,the alleged offense, that he had had illicit intercourse with the party charged. It was held that the inquiry did not relate to any matter in issue, and that it was error to allow the question to be put.
    Where a witness has been thus questioned about immaterial matters, he can not be impeached by proof of contradictory statements in regard to them.
    A deposition taken in chancery cannot be read on the trial of issues by a jury, where the witness is personally present at the trial.

      Heard November 12th, 13th and 14th, 1862.

      Decided May 20th.

    Appeal in Chancery from Washtenaw Circuit.

      A. Fetch, J. B. Gott, and T. M. Cooley, for Jane Dunn.

      O. Hawkins, for Jonathan F. Dunn.
   Campbell J.:

Upon the hearing of this cause originally, the Circuit Court, not being able to determine the facts from the evidence, directed an issue to try and determine whether the acts of adultery set up in the answer had been committed. An issue was framed by the Judge and heard before a jury where he presided, and their verdict was returned with his approval, he certifying his minutes of the trial. He rendered a decree thereupon, based o,n .tlm verdict, dismissing complainant’s bill, and granting relief to defendant on Ms cross bill. Objections were taken on the triaf and are certified with the proceedings.

Being satisfied that the proceedings under the issue are entirely irregular, and the verdict one which should be set aside and disregarded, I feel constrained to give somewhat fully my reasons for this conclusion, as I deem the practice which has been followed too dangerous to be sanctioned as having any weight in an appellate court.

The grounds urged at the argument for giving to this verdict conclusive weight were, chiefly, that the verdict of a jury on issues from chancery will not be set aside except upon the strongest- reasons, and that, the Judge having been satisfied with the verdict, his certificate of approval should prevail.

I do not understand either of these rules to govern us. While a verdict fairly given, without improper reception or rejection of evidence, is not to be lightly disregarded, yet is has no binding force on such issues. A new trial will be ordered upon much slighter grounds than in an ordinary action at law. And even without a new trial, the Court may entirely disregard the verdict and make a decree against it, although it satisfied the Judge who tried the cause. The reason for this difference is, that in an action at 'law the jury are the sole judges of questions of' fact, while in a court of equity there is no process by which the Chancellor can substitute the conscience or belief of a jury for Ms own; and he must find the facts on Ms own responsibility. An issue is not framed to relieve him of this responsibility, but to aid him, by a trial in open-court, where witnesses are produced and examined orally more fully than they can be on paper. But it may easily happen that a verdict does not assist the Court in coming to a conclusion. And there is no authority which I have-discovered which renders it incumbent on any court of chancery, or even proper, to follow a verdict which is not calculated to aid the conscience of the court, in solving questions of fact otherwise doubtful. Without going into cases in detail, I refer to East India Co. v. Bazett, 1 Jac. 91; O'Conner v. Cook, 8 Ves. 536; Cleeve v. Gascoigne, 1 Ambl. 323; Lord Faulconberg v. Peirce, 1 Ambl. 210; Loche v. Colman, 2 Myl. & Cr. 43; Bootle v. Blundell, 19 Ves. 494, 500; Blachburne v. Gregson, 1 Bro. C. C. 423; Armstrong v. Armstrong, 3 Myl. & K. 45. And the remarks of the Chancellor in Wood v. Wood, 2 Paige, 109, illustrate with much force the danger of resting on anything but the most satisfactory verdict, upon clear and specific charges. . The case before us combines many of the most dangerous features of those which have led to the action of the courts in the particular cases I have cited.

It appears that in several of these cases, and probably in all (for the practice appears to require it) the verdict was satisfactory to the Judge. That the opinion of the Judge should be regarded with much respect is undeniable; but, where the same Judge who heard the jury trial acts as Chancellor, there is less, foundation for any rule of approval in an appellate court, than where another Judge presides at law. No appellate court, reviewing facts, can permit its own views to be determined by those of the court appealed from, or rest its conclusions on his, however highly it may and should esteem his judgment. The reason why, if at all, the satisfaction of the law judge with the verdict receives weight is, is that he hears the jury trial without any knowledge beforehand of the evidence on the issues framed, or on the rest of the case. His opinion of the correctness of the verdict is therefore unbiased by any extraneous impressions; and, where judge and jury come to the same conclusion together, they are most likely to be right — although experience has shown, as in the cases cited — that the facts may not of necessity be as they find them. At least the verdict and certificate in such cases must usually be in accordance with, and based upon, nothing but the evidence given before the jury. But with the chancery Judge it is otherwise. He can not properly award an issue until he has been unable to form a satisfactory conclusion on the hearing, upon some material facts’ to which the issue must be legally confined. The jury have not the same evidence which he has considered. The testimony upon which they make up their verdict is not the whole evidence which has finally satisfied his mind, and it would be difficult, if not impossible, for him, in approving their finding, to say that he acts entirely upon the ■ testimony produced before them. His previous impressions cannot be shaken off.

I think, therefore, that there is no foundation for any rule which would give to the verdict of a jury, so approved, any conclusive effect which would justify an appellate Court in following it, unless “the information collected before the jury, together with that which appears on the record, is sufficient to enable it to proceed satisfactorily.” 2 Dan. Ch. Pr. 1306; Bootle v. Blundell, 19 Ves. 500.

As an issue can only be granted at the hearing as a general thing, and as this issue was so awarded, it is manifest that it must be confined, not only to facts put in issue by the pleadings, but to facts concerning which some testimony has previously been introduced and read at the hearing. No question of doubt could arise upon any fact not sworn to by some one. As the principal-errors claimed to have been committed on the trial are connected with the admission of improper testimony, it becomes material to understand the position of the case when this issue was ordered.

Complainant’s bill was based on cruel treatment, and also on a neglect- to provide for her support. The chief items of accusation were cruel language, endeavors to get rid of complainant, unfounded accusations against her, and a refusal to take her back from her father’s house, where she had gone on a visit with defendant’s consent, and threats of advertising her to prevent her receiving credit. There were also charges that she had been put in personal fear. The bill having been taken as confessed, defendant was allowed, upon affidavit of excuse and merits, to put in an answer accompanying the affidavit, whereby he denied these charges, and averred his constant and continued readiness and desire to receive her back into his house. This answer was filed February 17th, 1859. In March the bill was amended by inserting charges of extreme cruelty, and refusal to provide for complainant — apparently to supply a supposed formal omission. On May 14th and June 7th, defendant made oath that he had recently, and since his answer, and not until early in April, 1859, discovered, and was able to prove, that complainant had committed adultery with one James Vosburgh, in January and February, 1858, and with Halsted Douglass in June, 1858; and that he could prove the former by Eva Langton, and the latter by Jane- Johnson, Thomas Larry, Abram Brimenstall and Michael Lipe; and that complainant and Douglass had confessed the said adultery to him. June 18th, 1859, defendant was permitted, on these affidavits, to file a supplemental answer, which’was filed on the 22d, whereby, after reaffirming his former denials, and his willingness to treat complainant as his wife up to the time of filing his former answer, he set up the same acts mentioned in his affidavit. To this a replication was filed, and testimony was taken on both sides. December 30th, 1859, defendant filed a ■ cross-bill, charging, acts of adultery with Halsted S. Douglass on the 20th of June, 1858, on or about the 28th and 29th of June, in the month of May, and during defendant’s absence from home in April. Also in the fall of 1857, and in December, 1857, and January, 1858, with Vosburgh. The evidence read at the hearing for complainant, so far as it tended to show acts of adultery, consisted of the testimony of Jane Johnson to acts in June, 1858, and of Ann Teal to an act in May, 1858, with Douglass, and of Eva Langton to conduct with James Vosburgh at a time not specified, but some time in the winter of 1857-8. This bill also set up desertion.

The Court on the hearing ordered an issue to try the charges of adultery set up in the answer. This order would not embrace the act testified to by Ann Teal, but, as she was required to be produced before the jury, the omission was doubtless accidental. But there was no possible foundation for any issue upon any other charges than those referred to by these three witnesses.

In drawing up the issue, which was done by the Court —the parties not agreeing — the charges of misconduct with Douglass were embraced in one count, covering December, 1857, January, April, May and June, 1858; and the autumn of 1857, specifying no part of any month, and no month of the autumn, and no place except the township of Dundee.

The count against Vosburgh related to December, 1857, and January, 1858, in Dundee, without further certainty of time or place.

The case of Wood v. Wood, before referred to, is very explicit on the danger of allowing charges without reasonable certainty of time, place and circumstance; remarking that information sufficient to justify the charge will enable the party making it to put it in a tangible form upon the record. Whatever latitude may be allowed in pleading, there is no need of it in framing an issue which is to test the truth of evidence already in. The charges of adultery with Douglass, prior to April, 1858, are not set up in the cross-bill or answer; and are therefore entirely unsustainable in this cause. The charge as to April had not been offered in evidence, and was equally improper to go into the issue.

The jury rendered a general verdict, not specifying which of the charges they found proved, and which not. Had they passed separately upon the charges, we might derive some benefit from tbeir finding, because we could have seen how far it was founded on evidence. And if they had then passed only on charges supported by proof, and no other objection appeared, it might fairly be said the verdict would materially aid in satisfying the conscience of the Court. But a verdict like this is not sanctioned by practice, even when founded on charges- contained in the pleadings. Every issue presented must be separately passed upon, and where this is not done the Court has no means of knowing what value to put on the finding. See Brink v. Morton, 2 Clarke (Iowa), 411; Hall v. Doran, 6 Ibid. 433.

There is no class of cases wherein more care is necessary to make definite issues than those where adultery is charged. No one can have had much experience at the bar without discovering how large a proportion of such charges are fabricated, and how often they are allowed to be proved by incomplete testimony. Circumstantial evidence is undoubtedly necessary, as a general thing, to prove such offenses; but this renders it the more necessary to secure to . the party charged such information of time, place and circumstance, as will enable him or her to meet the proof by legal evidence. It is very manifest that in the case before us the vagueness of the issues, as well as their extension beyond the pleadings, has caused the introduction before the jury of testimony very well calculated to prejudice their minds against complainant, and yet in no sense evidence of any fact charged.

The defendant in making out his case before the jury introduced evidence which, so far as Halsted Douglass was concerned, confined the charges to the month of June, 1858; — Ann Teal as well as Jane Johnson swearing only to acts within that month. This therefore was, so far as the jury were concerned, the only time concerning which inquiries could legitimately be made. If upon the pleadings the case was broader, it still was confined to April, May and June. Douglass being introduced, for complainant, was interrogated only as to the facts related by defendant’s witnesses on the opening. He was asked on cross-examination, under objection, whether he had not the previous year stated that he had illicit intercourse with Mrs. Dunn. This statement, if made, was not a statement of anything in issue, and, if it had been, it was no evidence as against Mrs. Dunn. Defendant was then allowed to impeach Douglass, by witnesses who alleged he made such statements at that time. By allowing such questions the Court necessarily held, and gave the jury to understand, that this evidence bore upon the issue; and it is very easy to see what effect it would have. No party can be expected to anticipate or prepare for such charges. The course of investigation allowed only shows more plainly the impropriety of permitting such vague issues to be presented, as well as the necessity of specific findings on such as are laid before the jury.

I am of opinion that the impeaching testimony would have rendered the verdict invalid under any circumstances, whatever might have been the formal correctness of the issues as framed. It was not founded on any answer which defendant was at liberty to controvert.

The deposition of Eva Langton was allowed to be read when she was present in Court. This was also illegal. It is very well settled that the order usually, made, that the depositions may be read, is only designed to remove legal objections which might exist by reason of the trial at law. being technically a separate proceeding, which until our Courts were entrusted with jurisdiction, both at law and in equity, was in another tribunal. But trials before a jury of issues from chancery are governed by the rules of courts of law, which do not permit depositions to be read when the witness is present. 2 Dan. Ch. Pr. 1302, 1303; 1 Barb. Ch. Pr, 452.

I think the case must be disposed of without any reference to the verdict or trial, at law.

It involves two sets of issues — one based upon complainant’s bill, and the other on defendant’s answer and cross-bill.

I do not think complainant’s case sufficiently made out. She has proved an aggravated case of desertion — but not one of such cruel treatment as has been usually regarded as within the statute. Desertion alone is not one of the grounds relied on or charged, nor was it for the statutory period.

' Neither do I think that any case is made by defendant on his cross-bill. Jane Johnson’s testimony is the chief evidence which is at all conclusive. The testimony of Ann Teal and Eva Langton, if received to prove the act of adultery, is incredible. It is very manifest from their conduct that they drew no such inference at the time, and subsequent inferences are ■ of very little' value. Ann Teal’s detailed statement is inconsistent with itself. Jane Johnson’s evidence is quite direct; and had her contradictions and inconsistencies been such as could reasonably be accounted for by confusion and annoyance on cross, examination, it might be worthy of credit. But she has sworn as positively that she did not see the act committed, and did not see the parties on the bed together, as that she did see them. This is not a discrepancy which can be reconciled on any hypothesis. No one can safely be charged on such contradictions. In this I leave out of view the merely impeaching testimony, which is not eon■clusive either way, and also her suspicious conduct, which is equally undecisive.

But the conduct of defendant has been such as to raise strong suspicions of fabrication. The facts sworn to are such as a little coloring one way or the other would render conclusive or valueless. Defendant appears never to have had any special affection for his wife. He is shown to have alleged against her, when she was at her father’s and before she filed her bill, the same charges in substance now relied on for a divorce. Yet he at once after refusing to take her home advertised her as absconding. When he put in his first answer he offered to receive her back, and alleged he had always been willing to receive her. And although, as suggested on the argument, this answer was not signed by him under the rule, yet it was put in at his motion, on his own affidavit; and he must therefore have approved it. His affidavit, on which he was allowed to file his answer setting up adultery, avers that the facts had been recently brought to his knowledge. It appears distinctly from their own oaths that his witnesses, named in the affidavit, had not then informed him of the charges they afterwards swore to. If they had, they have contradicted themselves. The only conclusion at which I have been able to arrive is, that he did know as much before the suit was commenced as after; and that familiarities which were not then regarded as showing adultery, were afterwards colored and aggravated by the witnesses, either intentionally or by swearing to their mere suppositions, so as to furnish reason, unexplained, to believe it. The evidence shows that very gross behavior was so common among many of the persons associating together, that those unacquainted with the freedom of their manners would not suppose it could be anything but criminal. The witnesses who testify to some of the grossest acts do not appear to have been led to any such conclusion. And where such license of behavior is shown to prevail, it would be unsafe to conclude that adultery had been committed, without evidence which would not be needed in more refined society.

I am of opinion that the charges of adultery are not made out; and that both bill and cross-bill should be dismissed.

Martin Ch. J. concurred.

Manning J.

dissenting:

The question of adultery was submitted to a jury, g,nd I am satisfied with their verdict after reviewing the whole testimony — that before the Court when the feigned issue was awarded, and that given before the jury on the trial.

I do not see how the jury could have come to a different conclusion if they believed the evidence of Teal and Johnson. Their testimony warrants the verdict, and the Judge who awarded the issue and presided at the trial certifies that he is satisfied with the finding of the jury. We all know how much the weight to be given to evidence depends on the deportment of the witness while on the stand, and his manner of testifying.

As to the alleged errors on the trial, I do not regard 'them of such a character as to affect the verdict. The Court will not withhold its decree, or grant a new trial, for slight errors, if it is satisfied with the verdict. ■

Under the circumstances I do not think the cross-examination of Douglass, and the examination of witnesses to contradict him, was clearly erroneous, as its only object was to discredit him. I cannot look upon the questions put to him as so clearly outside of the case as to come within the rule excluding the examination of witnesses to contradict him.

The order for a feigned issue directed that either party should be at liberty to' read the deposition of any witness that had been taken in the cause, except the depositions of certain witnesses mentioned in the order, who were to be examined before the jury. Mrs. Langton was not one of them.

Christiancy J.:

The principal question in this case is upon the fact of adultery: the testimony bearing upon this point is very conflicting, and any conclusion to be drawn by the Court involves the necessity of judging of the credibility of the respective witnesses. This is generally a matter of much difficulty when the judgment is to be formed only from the testimony as it appears upon paper, without the opportunity of seeing the witnesses and observing their demeanor, and the mode of giving their testimony. It is a question of peculiar difficulty in the present case, from the nature of the question involved, the number of witnesses and the nature of the conflicting evidence; and any conclusion to be drawn from the written evidence alone must be painfully unsatisfactory. Whatever the conclusion at which we may arrive, we can by no means feel confident that it might not have been directly the reverse, had the •witnesses been examined in our presence.

The question was one peculiarly fitted for investigation by a jury. And if nothing had occurred on the trial to vitiate the verdict — if satisfied that the question had been fairly tried by them without the admission of incompetent testimony, by which they might have been misled — as the more important witnesses were examined in their presence, I should have felt much more confidence in the correctness of their conclusion than in any which I should be able to 'draw from the written evidence alone, and I should then have concurred substantially in the opinion expressed by my brother Manning.

But the defendant (in the original suit) was allowed not only to inquire of the witness Douglass, as to his statements or confessions of adultery with Mrs. Dunn at a period outside o of the issue made by the pleadings, but to contradict the witness by showing that he had in fact made such statements or confessions. I concur with my brother Campbell that this was clearly erroneous. This improper testimony was of a character peculiarly calculated to mislead the minds of the jury to the prejudice of Mrs. Dunn. I concur also with my brother Campbell that the written deposition of Mrs. Eva Langton was improperly admitted in evidence, the witness being present in Court: there can be no certainty that the effect upon the minds of the jury of an oral examination before them would have been the same as that produced by the written deposition. I cannot therefore feel safe in resting my judgment upon this verdict. I am therefore compelled to form my opinion from the written evidence alone. And without attempting here to enter upon an extended review and complete analysis of the evidence, it is sufficient for me to say that, judging only from the evidence as it appears upon paper, it is not such as to satisfy my mind beyond a reasonable doubt that Mrs. Dunn was guilty of the adultery charged.

I do not think: the vagueness of the issue would, of itself, be sufficient, under the circumstances of this case, to invalidate the verdict, as suggested by my brother Campbell. The issue, it is true, as framed by the Court, was broader than that authorized by the pleadings; and if evidence of adultery had been given relating to a period not covered by the pleadings, the verdict would have been of no validity. But the only evidence given tending to prove adultery was confined to the period covered by the pleadings.

The jury must, I think, be presumed to have found their verdict upon a charge of' which there was some evidence, rather than upon a charge of which there was none whatever. There was no evidence fairly tending to the proof of any adultery except that with Douglass in the month of June, 1858. This was clearly in issue by the pleadings, and had been so frequently the subject of judicial inquiry, previous to this jury trial, that there could be no pretext that Mrs. Dunn or her counsel could have been taken by surprise. If her counsel apprehended any danger from the vagueness of the charge as to time, place or occasion, as stated in Dunn’s answer and cross-bill, it was easy to have secured the requisite certainty by demurrer. But it is too late, I think, to raise such an objection after a full trial has been had upon the merits; especially where there is no ground for supposing surprise on her part; and I can see no good reason why the feigned issue upon the fact of adultery should be more specific than that presented upon the same fact by the pleadings.

I concur with my brother Campbell that Mrs. Dunn has also failed to establish the case made by her bill; and that both the original and cross - bill should be dismissed. I should have been glad to have arrived at a different result; as I am satisfied from the nature of the case, as shown by the evidence, that the welfare of both parties would have '.been promoted by a,divorce.

Decree reversed, and bill and cross-bill dismissed.


author: Martin Ch. J.: Manning J. : Christiancy J.: Campbell J.:

text:
    In the Matter of Jacob Spangler.
    Que Spangler was returned by the proper officer as liable to military duty. For the purposes of a draft the names of those thus returned were written upon ballots and placed in a box to be drawn from. By mistake in writing Spangler’s name the final letter was omitted, but it was held that this error did not invalidate the draft.
    Officers who, though appointed by the Governor of the State, are proceeding under a law of Congress to make a draft ordered by the War Department, are exercising a national authority, and persons drafted by them and held as drafted men, are held under national and not under state authority, notwithstanding they are not yet mustered into the United States service.
    Where one is imprisoned under the authority and in right of the Federal Government, the State Judiciary has no jurisdiction to inquire into the legality of the imprisonment on habeas corpus.

      Heard April 28th and 29th.

      Decided May 12th.

    Habeas Corpus, directed to Randolph Strickland, Draft Commissioner for the county of Clinton. From the return and the admissions of the parties the following facts were made to- appear, upon which the relator moved this Court for his discharge.

      On August 9th, 1862, the Adjutant General of the United States issued General Orders No. 99, as follows:
    “ Regulations for the enrollment and draft of three hundred thousand militia.
    In pursuance of an order by the President of the United States, bearing date August 4th, 1862, whereby it is provided that a draft of three hundred thousand militia be immediately called into the service of' the United States to serve for nine months, unless sooner discharged, and that the Secretary of War shall assign the quotas to the States, and establish regulations for the draft; also that if any state shall not by the 15th of August furnish its quota of the additional three hundred thousand volunteers authorized by law, the deficiency of volunteers for that state shall also be made up by special draft from the militia, and that the Secretary of War shall establish regulations for this purpose,—
    It is ordered: fflrst, The Governors of the respective States will proceed forthwith to furnish their respective quotas of three hundred thousand militia called for by the order of the President, dated the 4th day of August, 1862, which quotas have been furnished to t£e Governors respectively by communication from this department of this date, according to the regulations hereinafter set forth.
    “ Second, The Governors of the respective States are hereby requested forthwith to designate rendezvous for the drafted militia of said States, and to appoint commandants therefor, and to notify the Secretary of War of the location of such rendezvous and the names of the commandants.
    “ Third, The Governors of the respective States will cause an enrollment to be made forthwith by the assessors of the several counties, or by any other officers to be appointed by such Governors, of all able bodied male citizens between the ages of eighteen and forty-five, within the respective counties, giving the name, age and occupation of each, together with remarks showing whether he is in the service of the United States, and in what capacity, and any other facts which may determine his exemption from military duty. All reasonable and proper expenses of such enrollment, and of the draft hereby provided, will be reimbursed by the United States upon vouchers showing the detailed statement of service performed and expenses incurred, to be approved by such Governors.
    “ Fourth, Where no provision is made by law in any State for carrying into effect the draft hereby ordered, or where such provisions are in any manner defective, such draft shall be conducted as follows:
    “1. Immediately upon completion of the enrollment the lists of enrolled persons shall be filed in the offices of the sheriffs of the counties in which such enrolled persons reside.
    “2. The Governors of the respective States shall appoint a Commissioner for each county of their respective States, whose duty it shall be to superintend the drafting, and hear and determine the excuses of persons claiming to be exempt from military duty.”
    Then follows specific directions for the discharge of their respective duties by the enrolling officers and the draft commissioners, and for the service of notice upon the persons drafted to appear at the places of rendezvous. And also a direction for an additional draft to fill up the quota of any State of the additional three hundred thousand volunteers which should not be filled by the 15th day oí August.
    On the receipt of this order by Governor Blair, he issued a proclamation of which the following are the material portions:
    “STATE OF MICHIGAN.
    Executive Oeeice, ) Lansing, August 25, 1S62. J
    “In accordance with the laws of Congress and orders from the War Department, to mate a draft from the militia of this State to meet the exigencies of the present rebellion, it is hereby ordered that the Assessors in each and. every organized township in every county, and in each ward of every city in this State, be, and are hereby directed to make and complete a census of the male citizens between the ages of eighteen and forty-five, in their respective townships or wards, according to the printed forms furnished for that purpose, and to make a return of the same to the County Clerk of their respective counties on or before the 10th day of September, A, D. 1862.
    “Commissioners will be appointed by the Governor in each county, whose duty it shall be to superintend drafting and hear and determine the excuses of persons claiming to be. exempt from military duty, and authority will be given to such Commissioners to superintend the making of such census and returns, and to see in all cases that full and complete returns are made.
    “The necessary blanks will be sent to the several County Clerks by the Adjutant-General of the State, and it is hereby made the duty of the County Clerks of the respective counties to furnish the same to each and every Assessor in every township, or ward of any city, in his county, without delay.
    “The County Clerks of the respective counties are hereby required to notify the Commissioner appointed to superintend drafting of the filing of the returns of the Assessors.
    .“Any Assessor or County Clerk guilty of a violation ■of, or neglect to perform, the duties enjoined in the making of such census and return, and the filing thereof, will be punished with the utmost rigor of the law.”
    Accompanying this proclamation was an order from the Adjutant General of the State, giving full directions to the assessors for the discharge of their duties under it.
    On October 3d, 1862, the Adjutant General of the State issued another order, specifying what counties were deficient in filling their respective quotas of the 300,000 additional volunteers, and allowing twenty days for filling the same before draft. By another order of the same date Draft Commissioners were appointed in the respective, counties, the respondent being so appointed for the county of Clinton., These Commissioners were to superintend the draft, and to hear and determine the excuses of those claiming to be exempt from military duty.
    On January 29th, 1863, the Adjutant General of the State issued another order, providing that
    “ In carrying the draft into effect in the several counties,, the Commissioners and Sheriffs will be governed by the following instructions:
    “At the time fixed by the Commissioner for making-the draft, the Sheriff of the county, or, in his absence,, such person as the Commissioner may appoint, shall, in the presence of said Commissioner, publicly place in a wheel or box, of a like character to such as are used for drawing jurors, separate folded ballots, containing the names, of all persons remaining on said enrollment lists not stricken off by exemption, and a proper person, appointed by the Commissioner, and blindfolded, shall thereupon draw from said box or wheel a number of ballots, equal to the number of men to be drafted as the proper quota of each township or ward, after deducting the credits.
    “A printed or written notice of his enrollment and draft, and of the place of rendezvous of the drafted military force, shall thereupon be served by the Sheriff of the county, upon each person so drafted, either by delivering the same in person or by leaving it at his last known place of residence.
    “Any person so drafted may offer a substitute at the time of his arrival at the rendezvous of the drafted militia force, at the county seat, and such substitute, if he shall be an able-bodied man, between the ages of eighteen and forty-five' years, and shall consent 'in writing (with the consent of his parent or guardian, if a minor) to subject himself to all the duties and obligations to which- his principal would have been subject, had he personally served, shall be accepted in lieu of such principal after being examined and passed by the examining surgeon of the county.
    “The persons thus drafted shall assemble at the county seat of -their respective counties, within ten days from the time of drafting, or be considered absent without leave; whence transportation will be furnished them to the place of general rendezvous.
    “The Commissioners in connection with the Sheriffs of counties will collect and bring to the county seat in their respective counties all the men drafted under this order, who may be absent without leave at the time specified for them to report as above, and if not found by them, they will report their names and places of residence to the commandant of the general rendezvous, who will immediately take measures for their apprehension.
    “Detroit Barracks will be the general rendezvous for the drafted, men in this State, under the command of Lieut Colonel J. R,. Smith, IT. S. Military Commander.”
    In accordance with these directions the draft for the county of Clinton was made under the supervision of the respondent. Among the names returned in that county as liable to military duty was that of Jacob Spangler, the relator. In writing this name on the ballot for the draft box, the final letter was omitted by mistake, and that ballot being drawn, a notice directed to Jacob Spangle was served upon the relator, apprising Mm of the draft, and of the place of rendezvous. No other person by the name of Spangle or Spangler was returned as liable to military duty in that county.
    The relator not reporting himself for duty in accordance with the notice served upon him, the Draft Commissioner took him into custody to convey him to the' general rendezvous. And he returned to the writ of habeas corpus that he claimed Spangler under the military authority of the United States.

      J. L. Chipman, for the relator.

      A. Russell, U. S. District Attorney, for the respondent.
   Martin Ch. J.:

Were it- not for the importance of the jurisdictional question presented in this case, and the imperative necessity for its settlement at this time, I should content myself with deciding that, upon the undisputed facts of this case, there is no error in the proceedings of the Draft Commissioner, and that Spangler must be re-delivered to his custody. His name was fully given and properly spelled upon the enrollment, and the trifling mistake of dropping out a letter from his name upon the ballot, when the person was clearly designated, could not render the draft invalid.

But I am not willing to turn the case oif upon this point. The main and all important question is one of jurisdiction, and it is this which I shall consider. The solution of this question depends, in my view, entirely upon that of whether Spangler is held by the Draft Commissioner under Federal or state authority; for, if under the former, we have no jurisdiction, while if under the latter, we have.

I do not concede that the return of the Commissioner that he holds Spangler under or by virtue of the authority of the United States, is of itself sufficient to deprive us of jurisdiction to inquire into the cause of his detention— for this is a traversable fact — but I do concede, that if so held, we have no jurisdiction to inquire further as to the legality of such detention, but that the whole subject is exclusively within that of the courts of the United States.

The first question, therefore, is, under what authority is he held?

The Constitution of the United States, Art. 1, sec. 8, empowers Congress to raise and support armies, to provide for calling forth the militia to execute the laws of the' Union, to suppress insurrection, and to repel invasion, and to provide for organizing, arming, and disciplining the same, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers,1 and the authority of training the militia according to the discipline prescribed by Congress, and to make all laws which shall be necessary and proper for carrying such powers into execution.

The Constitution itself was framed and adopted for the purposes, among others, of ensuring domestic tranquillity, and promoting the general welfare of the people of the United States; and the power of regulating the militia, and of commanding its services in times of insurrection, are natural incidents to the duty of watching over the internal peace of the Union. (See Federalist, No. 29). This whole power was conferred upon Congress, reserving only to the states the appointment of the officers, and the training of the militia according to the discipline prescribed by Congress. In the exercise of this power, Congress, by the act of July 17th, 1862 (Ch. 201), enacted that the President should call forth the militia, and if by reason of defects in existing laws, or in the execution of them, in the several states, or in any of them, it should be found necessary to provide for enrolling the militia and otherwise putting the act into execution, he was authorized in such case to make all necessary rules and regulations for such purpose — the power of calling forth the militia already being reposed in him by existing laws. By virtue of this authority, upon the 4th of August, 1862, the President ordered a draft of. 300,000 militia, to be immediately called into the service of the United States, and directed the Secretary of "War to assign the quotas to the States» and establish regulations for the draft, &o.

Such assignments were accordingly made, and upon the 9th of August orders were iss’ued from the War Department, requiring the Governors of the respective states to proceed forthwith to furnish their respective quotas, directing an enrollment to be made of all able-bodied citizens between the ages of 18 and 45, and providing and ordering that where no provision was made by law in any state for carrying into effect the draft thereby ordered, or when such provisions were in any manner defective, the draft should be conducted in a manner specified in such order. One provision of which requires the Governor to appoint a Draft Commissioner for each county, fixing his compensation, and giving minute directions to him as to the discharge of his duties. The Governor of this State, finding that an imperfect military census had been taken, and that there were defects in our state laws, that inequality would occur in their execution, observed, in ordering the draft in question, - the law of Congress and the orders of the War Department, and did not proceed under the state law. In this he exercised an executive discretion, with which we cannot interfere, and which, I think, was wise and proper. As he was not executing the laws of Michigan, he was, of necessity, obeying the laws of Congress and the orders of the President. The Draft Commissioner appointed by him, was consequently a federal; and not a state officer, and the draft was made and the relator is now held under federal authority. The only remaining question is that of the jurisdiction of this Court, and of state officers, to inquire into the regularity of the draft, and the legality of Spangler’s detention. Upon this question I think there can be no doubt that we have none. The Federal Government and the state governments exist as independently as the governments of the several states. Each acting within its sphere is foreign to the other, and independent; and this principle extends to the jurisdiction of the courts of each. Except in the case of the appellate jurisdiction conferred upon the Supreme Court of the United States, the courts have jurisdiction only-commensurate with the law of the state or nation under which they severally exist. An abuse of the authority of the United States, although committed by a citizen of this State, is an offense (says Chan. Kent) against the United States, and exclusively cognizable in their courts. If this be so, the exercise of power under such authority is equally under such exclusive jurisdiction. The views of Chief Justice Taney in Ableman v. Booth, 21 How. 506, are so apposite and exhaustive of this subject, and meet so fully with my concurrence, that it is hardly possible for me to do more than to refer to them as containing the whole law upon the subject. Questions of this kind, as he says, must always depend upon the Constitution and laws of the United States, and not of a state. The Constitution was not framed merely to guard the states against danger from foreign nations, but mainly to secure union and harmony at home: for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the states then possessed should be ceded to the General Government, and that in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a state or from state authorities.

The writ must be dismissed for want of jurisdiction.

Manning J. :

The first question that meets us in this case is one of jurisdiction — a question, it must be admitted, of more than ordinary importance, as it- involves a construction of the Constitution of the United States as to the power of the federal and state courts, in the use of the writ of habeas corpus^ to discharge from imprisonment persons illegally deprived of their liberty.

We have two governments — a state government and a federal government. Each of these governments is supreme within its appropriate sphere. The line that separates the powers of the two is not at all times easy to trace. Some parts of it are well defined, while other parts of it are more obscure, and difficult to follow. This is owing, in part, at least, to the double relation we sustain as citizens of both governments, subject to the laws and regulations of both, and owing allegiance to both.

According to the theory of our government, the sovereign power is in the people. And viewing that part of it delegated by them for governmental purposes as a whole, the two governments together make that whole. In this sense neither is a whole in itself, any more than the legislative, executive or judicial part of the government is the whole government. Each of these departments is but a part of the government, acting independently of the others, and at the same time correlatively with them; and so closely are they bound together as a whole, that it is not at all times an easy task to find where the independent action of one of them ceases and that of another begins. It is not, therefore, at all surprising that a like difficulty should sometimes be experienced in determining between the powers of the federal and state governments, as a whole; — in fixing the precise point where the functions of one cease to act, and those of the other begin to act. The power to act in a given case we may know exists in one of the two, but in which, may not be so easy of solution; and yet it may be necessary to the harmonious action of the 'sovereign power delegated to them that it should be solved. For, without the independent, harmonious and correlative action of both, we can hardly expect to gather the golden fruit anticipated, by our fathers in the formation of our somewhat complicated, and yet simple form of government.

The two governments, in the sense already stated, are only one whole. Without either we should have but half a government; a fact too frequently overlooked, and we fear too little regarded by us, when we permit ourselves to become- the partizans of either, in opposition to the other. We should think a man very unreasonable who should attempt to increase his powers of locomotion by strengthening one of his limbs at. the expense of the other. This shows us the great care that should always be kept in view by each government, while determining its own powers, not to encroach on the powers of the other.

Neither is supreme, in the sense that it has power to dictate to or control the other, when acting in its appropriate sphere. Each is supreme within its own sphere. Neither is supreme within the sphere of the other. A common constituency supports, upholds, and gives vitality to both. To the Federal Government belong all questions outside of the states that pertain to us as a nation, and such powers within the states as are given to it by the Federal Constitution, in express terms or by clear implication; while all local and municipal powers not ceded to the Federal Government, belong to the states. Each has its writ of habeas corpus. Each has power under its constitution to suspend the writ on the happening of a certain contingency. The object of the writ is the same in both governments. It is to release from imprisonment, within its judicial limits, persons entitled to its protection who are deprived of their liberty without warrant of law.

The territory of a state is common to both governments-The territorial jurisdiction of both governments, therefore, so far as it respects the State, is the same. But is the judicial jurisdiction incident to the writ of habeas corpus the same ? We think not. Otherwise the powers of the federal and state courts, as it regards this court, are identical; and if they have a common concurrent jurisdiction, the power given to either government by its Constitution, to suspend the writ, for all practical purposes is a nullity, as neither can suspend the writ of the other, and as the only effect of a suspension by one, would be the same as that of abolishing the jurisdiction of one of two writs having a common concurrent jurisdiction, viz: to drive the suitors of both courts into the one whose jurisdiction was left unimpaired. Besides, if both governments have a common jurisdiction in the use of. this writ, we have two independent governments, neither responsible to the other, acting upon the same subject matter. One may imprison, and the other release from such imprisonment, for the former to renew the imprisonment, and the latter again set free, until the stronger overpowers the weaker.

Any construction of the Federal Constitution that leads to such results, must necessarily be erroneous. We can not suppose the people, in adopting the Federal Constitution, intended to make such a distribution of the sovereign power delegated by them as to place one part of it in antagonism to another.

There must, therefore, from the very nature of our institutions, be a line separating the powers of the two governments, on this, as Well as .on every other subject.

The question then arises, where is that line, and what constitutes it? There can be but one. And that apjmars so clear to my mind (it may appear differently to others) that I almost wonder how any other should ever have been thought of. It is this: that the state courts have the right, and it is their duty, in all cases authorized by the laws of the State, to issue the writ of habeas corpus to inquire into the legality of the imprisonment of any person deprived of his liberty within the State, and to discharge him therefrom if wrongfully imprisoned, unless he is imprisoned or restrained of his liberty by the Federal Government.

By this I mean, not, by one acting in his own right, but by one acting for and in right of, and under authority from the Federal Government; or claiming in good faith and under color of such authority to be so acting. I use these last words for the reason that good faith and color of authority are necessary to prevent imposition, and to oust the state jurisdiction. These being judicially ascertained, the state court can go no further. It can not inquire into the validity of the authority, or the legality of the detention under it; for this would be taking jurisdiction of the whole question.

The state courts have a right to inquire whether the person imprisoned is within the state jurisdiction, which he must be if in the State, unless he is deprived of his liberty by authority of the Federal Government; in which case he is not, so far as it regards his imprisonment and the state writ of habeas corpus. In the language of Chief Justice Taney, in the cases of Ableman v. Booth, and the United States v. Booth, 21 How. 523, “He is then within the dominion and exclusive jurisdiction of the United States.” He is, as it regards the state habeas corpus, as completely beyond its reach for the purpose of releasing him, as he would be were he not within the State. Up to the point of imprisonment by the Federal Government the state habeas corpus has jurisdiction. It then ceases and the jurisdiction of the federal habeas corpus begins. In all cases of imprisonment, other than by the Federal Government, the State writ of habeas corpus has exclusive jurisdiction. In all cases of imprisonment by or under authority of the Federal Government, the federal writ of habeas corpus has exclusive jurisdiction.

Instances have occurred in which the writ of each government has been sent across this line into the dominions of the other. Such irregularities are calculated to produce irritation, and bring on an unseemly conflict between the state and federal courts, and thereby disturb the barmonious action of the two governments. As we have already said, any construction of the Federal Constitution that leads to such results, must be untenable.

From the return to the writ, and the papers attached to and .forming a part of the return, it appears that Spangler is held by virtue of a draft made under the laws of Congress and orders of the War Department of the United States. The fact that the Governor, as appears by his proclamation, thought proper to act in ordering the draft (and we do not question his right) under the laws of Congress and orders of the War Department, instead of the laws of the State, does not change the power under which the draft was made, and Spangler is held by the Draft Commissioner. The State Executive is the conduit through which the power passes that holds the prisoner; and for the true character of that power we must look to its source, and not to the channel through which it flows. If one of our Sheriffs should be deputed by the United States Marshal to serve a writ from the federal court, this Court would have no authority to entertain a motion to set aside the service, because it was made by the Sheriff. And it would not alter the case if the State should be interested in the prosecution of the suit in which the service was made.

The writ and all further proceedings under it, I think, should be dismissed for want of jurisdiction.

Christiancy J.:

I concur with my brethren in the result at which they have arrived in this case; but as there is a difference in the mode of arriving at that result, it is proper that I should briefly indicate the grounds of my opinion.

Had the Commissioner sought to hold the prisoner under the state law, authorizing a draft, there could be no doubt of the jurisdiction of, this Court to issue this writ of habeas corpus, and to discharge the prisoner, at any time before he had been actually mustered into the service of the United States.

But the Draft Commissioner does not claim to detain the prisoner under the state law; and it is evident from the face of the papers set out in the return, that no attempt was made to effect the draft under the state law.

The draft here in question was made solely under the authority of the act of Congress of July 11, 1862, and the order of the President made for the purpose of carrying this law into effect — the order of the Secretary of War being the order of the President, as clearly as if issued and signed by the President himself.

But it is objected that, in pursuance of the act of Congress, the draft should have been had under the state law, which, for this purpose, had been recognized by the act, except in cases where the President should first decide, with special reference to this State, that the state laws were defective, or defectively executed, and should, therefore, issue his orders, specially applicable to this State, prescribing the manner in which the enlistments should be made and the act carried into effect: that he had no right to issue the general order stated in his return, leaving it to the Executive of the respective States to determine the question.

The act of Congress of July 11, 1862 (seo. 1), does not declare by whom this question is to be determined, but merely that “If, by reason of defects in existing laws, or in the execution of them, in the several States, or any of them, it shall be found necessary,” &o., the President is authorized to make such rules and regulations. The power is made contingent only upon the fact of such a condition of the State laws, or of their execution: not upon the determination of the question by any particular person or officer. And I can see no reason why the President may not act, when this fact is found by the Governor of a State, upon whom the call is made for men, as well as if found by the President. The Governors of the States must be much more intimately acquainted with the character of the State laws, and the difficulties and defects in their execution; and, practically, it seems to me, the question must, as a general rule, be left to the determination of the State Executive, except in those States where either the state authorities or the people are supposed to be disloyal to the Federal Government. Should the Governor inform the President that the laws of his State were so defective, or defectively executed, that he could not furnish the requisite number of men in due season under them, it could hardly be expected that the President would overrule his decision. Or, take the reverse of the case here given, and suppose the Governor to have decided that the laws of his State are neither defective nor defectively executed, and that he so informs the President, could it be expected that the President would disregard this decision or opinion of the Governor, and proceed to require the draft to be made under the act of Congress and his own executive order, without reference to the state law? Should the President thus act, we should doubtless have more complaints than we have yet heard of his exercise of arbitrary power, and certainly with more reason.

Hence I am satisfied that though the President may decide upon this question of the defective condition or execution of the state laws, in States which are in insurrection, or more or less affected by the rebellion, or where there is good reason to apprehend disloyalty on the p3art of the State Executive, yet he may, if he see fit, and should, in other cases, leave this question to be decided by the State Executive. Hence, I think the President was fully justified in issuing the general order, attached to the return, regulating the enrollment and draft in all cases where laws of the State are defective or defectively executed, leaving it to the State Executive to determine the question: and when so determined by the State Executive, that determination, as in the present case, is equally valid and effectual as if made by the President himself. The effect, therefore, of the President’s order and the proclamation of the Governor, his appointment of Draft Commissioners and of the action of such Commissioners, are, I think, the same as if all these proceedings for the enrollment and draft had been especially and directly prescribed by the act of Congress.

The Draft Commissioner appointed by the Governor, must, I think, be considered as acting for, and exercising the authority of the Federal Government, and as a federal officer for the performance of these duties, as much as if he had been directly appointed by the President. The men to be raised by the draft were to be raised for the federal and not the state service. The whole proceeding was an exertion of federal and not state authority, for the purpose of selecting the men who were to be called into service, and, so, far as the relator is concerned, for the purpose of bringing him into the service* of the United States. The error in copying the name did not, I think, affect the validity of the proceedings, as the identity of the person intended was clearly ascertained. The proceedings were, I think, valid, and imposed upon the relator the duty of entering the service, and authorized the Commissioner to hold him for that purpose. If, therefore, the state judiciary have jurisdiction to determine the questions arising under the present writ, the relator should, I think, be remanded to the custody of the Commissioner.

But should these views be erroneous, still, I think, beyond all controversy, there is enough appearing in the case to show that the Commissioner in good faith claims to hold the relator under federal authority — that this authority is not set up as a mere pretext; but that the Commissioner and the authorities under whom he acts are honestly endeavoring to carry into effect the requirernents of an act of Congress and the Federal Executive in a matter vital to the safety of the nation. The question, therefore, of the authority of the Commissioner to hold this prisoner for the purpose stated, is one which I think appropriately belongs to the federal and not the state judiciary. Upon this point of the jurisdiction, as applied to the facts of the present case, I concur with the Chief Justice and my brother Manning.

In either view of the case, therefore, the prisoner cannot be discharged by this Court.

Campbell J.:

Under the act of Congress of July 17th, 1862, the Governor of Michigan was called upon, through the War Department, to furnish troops for the service of the United States, to a specified number. The requisition from the Secretary of War set forth certain measures, which he was recommended to adopt, in case the state laws had not adequately provided for the emergency. The principal one of these suggestions, which becomes important in this case, is that commissioners should be appointed by him, to take charge of the drafting when that should be resorted to, and see that it was properly carried out. The relator was enrolled, and, not having made out any claim to exemption or disability, his name was attempted to be copied from the list on a slip of paper, with the Other names, and the slip placed in the box and drawn out. Upon this slip the name was written “Spangle,” instead of “ Spangler.” No other person of the same or any similar name resided in the drafting district, and his name was properly spelled on the list from which the slip was copied. He failed to appear when warned, and was arrested, and now claims to be discharged, on the ground that the proceedings to draft him have been had by the state authorities, in disregard of state laws, and that they cannot be justified under any other.

The question of misnomer is not one that can be conclusive in such a case. If the relator’s name had not been properly enrolled, it would have been open to more doubt, perhaps; but how far the mistake would have vitiated the draft is not material in this case. But here the person was not only identified clearly, but all the steps necessary, previous to the placing the slips in the box, were regular. This slip was copied from the correct list, and the omission was a clerical error, which, under the facts, could not possibly have caused confusion. The slip drawn was the one which had been placed in the box to represent him, and I think did represent him when drawn. The law does not require the name itself to be put in the box. The number corresponding to it is equally available; and all that can be required, as it seems to me, is that the slip drawn should appear, beyond doubt, to represent the person properly named in the roll from which it is copied.

The question, then, which it becomes necessary to determine, is whether he is lawfully held by the authorities of the State of Michigan. And as the course of the argument has necessarily involved an inquiry into the source and extent of the authority of the various public officials who have had charge of the raising of troops, and questions of jurisdiction have become involved, among others, it seems unavoidable that the subject, from its present importance, should receive more extended notice than might suffice in ordinary cases.

No question arises here concerning any forces except those which are technically and legally called the militia, as in no other cases is the drafting system applied through the state authorities.

Congress has power, under Article 1 section 8 of the Constitution, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;” and also “to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”

By section 2 of Article 2 it is provided that “ The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the active service of the United States.”

Even without the aid of the uniform practical construction Avhich is to be found in the legislation of Congress, from the organization of the Government, there could be no difficulty in coming to a conclusion on some, at least, of the most important questions attending the establishment and use of the militia force, which we are now called upon to consider.

In the first place, it has been understood that Congress may and should determine the classes of persons from whom the militia should be filled up, either entirely, or so far as it can be done without injuring the necessary organizations of the General and State governments. This it has done by declaring, in general terms, that it shall be composed of all the free, able bodied white male citizens of the respective States, resident therein, of the age of eighteen years and under the age of forty - five years, except such persons as are by the acts of Congress, or by the state laws, expressly exempted: — 1 U S. Stat. 271. Congress having declared of whom the militia shall consist, may provide and has in a general way provided, for organizing, arming and disciplining them. But Congress, as we have seen, can not govern them, except when employed in the service of the United States; and they can only be called into the service of the United States when they are wanted for active duty, in protecting or vindicating the authority of the Government, against actual or expected resistance. In time of peace (which may fairly be expected to be our ordinary condition), Congress has, then, no direct agency in managing the militia; and although it may prescribe how they are to. be organized, equipped and disciplined, yet the actual government is to be exercised by the states. All the machinery is therefore in ordinary times in the _ hands of the states. That the requirements of Congress are as binding on them as on individuals is unquestionably true. The question is not whether they can lawfully omit the duties enjoined upon them. The only question which concerns us, in the present inquiry, is whether, in performing these duties, they act as mere agents and ministers of Congress, or whether they act as communities, recognized by the Constitution, and owing the performance of these particular functions to the mandates of the Constitution, as directed especially to themselves. The language of that instrument, where it gives Congress power to govern the militia when called into service, shows that their government at other times is not by Congress. In other words, while they are sometimes governed by the State, and sometimes by Congress, they are never governed by both at the same time; and the governing action therefore can not be a mere agency ■ on either side. Nor is the President commander in chief of the militia not called into service.

This doctrine has always been recognized as applicable to the militia system, by the acts of Congress, which refer the whole work of organization to the State laws and authorities. And no one, in time of peace, or in time of war, would hesitate in declaring that, when not in government service, the militia are under State authority. Assuming that the courts of the Union will not interfere with parties in state custody or control, nor the state courts with those under the control or custody of the United States, we are to inquire whether, in the present instance, the relator is in the custody of the United States or of the authorities of the State of Michigan. The answer to this inquiry may properly determine how far we ought to proceed in the investigation of the facts before us. The question does not introduce any antagonism of jurisdictions, for all of these matters are undoubtedly regulated by the Constitution, in order to promote the efficiency of the militia to secure the safety and protection of the entire country; and the functions thus separately vested are so separated, because the separation was regarded as desirable, to secure economy of general expenditure, and to save the multiplication of offices, and the other familiar difficulties which have been so happily avoided by our composite system. By leaving each branch' of jurisdiction where it belongs, we are only obeying a rule which is addressed to both alike by the same authority, which is our supreme guide in legal action.

The Constitution contemplates that every available man in the country may be required by Congress to be included in the militia — subject to such exceptions as they may allow, or as the nature of our institutions may require. We must also assume that it contemplates that, whenever required, some means must exist by which their services may be obtained. Congress may provide for calling out the troops, but the orders must necessarily emanate from the Commander in Chief, under whose control the troops in service must bo held. The act of 1862 (in substantial conformity in this regard with former laws) authorizes the President of the United States to call forth the militia, for such period not exceeding nine months as he may appoint, and declares that the militia so called shall be mustered in, and continue to serve for the term sj>ecified, unless discharged by the order of the President. This law, like all the other statutes, distinguishes between the calling forth and the mustering in, and makes the mustering in the commencement of service. This is in strict accordance with the decisions in Houston v. Moore, 5 Wheat. 1, and Martin v. Mott, 12 Wheat. 19, in 'both, of which cases it was held that the militia did not cease to be state troops until received into the actual service of the United States. The case would have raised no difficulty had it not been for some further provisions in the act of Congress, which are supposed to have introduced a more direct agency of the Union authorities into the work of getting the forces in the field. The act provides that “ if by reason of defects in existing laws, or in the execution of them, in the several States, or any of them, it shall be found necessary to provide for enrolling the militia and otherwise putting this act into execution, the President is authorized in such cases to make all necessary rules and regulations,” &e. And in pursuance of this act, the Secretary of War issued a request to the Governor of Michigan, to furnish the quota of this State; suggesting at the same time the propriety — in case the existing state laws had not made adequate provision for the emergency — that commissioners should be appointed to superintend the drafting operations; and making some further recommendations. These recommendations were accepted by the Governor, and issued in the form of general orders. It is claimed that this action was an assent on his part to waive his official authority as Executive of Michigan, and to perform duties as an agent of the War Department; and it is claimed on the other hand that he was acting as Governor, and that his action was void because not had under any law which he could as Governor carry out; on the ground that he must carry out the state laws if any. And these objections on the one hand to the jurisdiction of this Court, and on the other to the legality of the Governor’s action, are somewhat closely connected.

It was claimed on the argument that any regulations in aid of the defects of existing laws, or their execution, must be made by the President; and that these regulations emanate not from him but from the Secretary of War, and ave therefore invalid. This objection is not maintainable. The Secretary of War is in this respect nothing more than the channel of executive action; and it is well settled that his action is to be regarded as the action of the President — at least until disapproved. The President is not obliged to leave his more important duties to attend to official details > and the action of his secretaries must be presumed to have been directed or approved by him, so as to make it his own: — Wilcox v. Jackson, 13 Pet. 498; U. S. v. Eliason, 16 Pet. 291; Williams v. U. S., 1 How. 290; Parker v. U. S., 1 Pet. 293. Nor can the fact that, instead of adopting regulations by act of Congress to supply deficiencies, the President was authorized to adopt these regulations, change the relation of the State to the Union authorities, where the state authorities are called ujion to act. There is nothing in the Constitution which requires Congress to adopt such specific regulations in regard to the performance of the duty of calling out the militia. That duty must be performed by the executive authorities; and, if the laws were entirely silent on the subject, the President, when authorized to call out the forces, must of necessity have power enough to provide methods and adopt regulations for enabling the men to be obtained. As sujireme Executive of the nation, and as Commander in Chief of the forces called out, he has certainly been invested with all needful authority. It would be absurd to suppose that where he. is empowered to determine without appeal, and absolutely, the existence of a state of things which justifies military interference, and is also empowered to call out the forces and suppress resistance to the Government, he is powerless, after exercising these high prerogatives, to direct how to carry out his own lawful orders, unless every one else shall have performed the duties devolving upon them. Public emergencies like those contemplated in the Constitution, do not admit of delay, and require broad discretionary powers in all matters of detail; and Congress, in leaving these matters to his discretion, not only-vested in him no strange or unusual powers, but acted wisely. The defects in different parts of the country could not be supposed to be the same. The state laws differ, and in some places more complete preparation had been made than elsewhere. In some places, where troops might lawfully be called for, the ordinary local action was not to be looked for at all, by reason of the presence of rebellion.

Uniformity of action, therefore, could Jnot be expected, and the matter was properly left to the discretion of the President, which, when exercised in such matters, must be respected. U. S. v. Eliason, 16 Pet. 291; Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 1; People v. Lewis, 1 Johns. 73; Lockington v. Smith, Pet. C. C. 466 ; Vanderheyden v. Young, 11 Johns. 150. It is one of the fundamental rules of construction, that when duties are imposed upon an executive officer of the Government, and he is confined to no specified method of carrying them out, he may select such means as are reasonable and proper, at his option.

So far as the State of Michigan is concerned, the President has not found it necessary to do anything more than to make the proper requisition on the Governor; leaving* him to carry it into effect by the state laws, if under them provision had already been adequately made to furnish the troops; and if not, by other means — suggesting, as appropriate in such case, the steps actually taken. That these suggestions or requests are equally valid with a positive order, there can be no question. The requisition for troops is such an order, whether made in one shape or another. Martin v. Mott, 12 Wheat. 19. Although, as an executive head of a State, there may be no process of compulsion directly against a Governor (as decided in Commonwealth of Kentucky v. Denison, Governor of Ohio, 24 How. 66), yet he would be guilty of a gross violation of duty were he to disregard such a requirement; and the call must then be carried out through other channels. But this immunity from ordinary process has led with manifest propriety to the use, in intercourse between public officials, of the courtesy common between nations, of resorting to requests instead of peremptory demands — a courtesy which the authorities of this State have fairly deserved. But it is made a question whether the Governor can lawfully exercise such a discretion as is here left to him, of determining whether resort is necessary to any new mode of action. .

To determine this, we must first look to see precisely the nature of the discretion so remitted to him. It does not involve merely the question whether the state laws have made adequate provision for answering the call of the President. The act of Congress contemplates that there may be adequate laws inadequately carried out. The first question is, to some extent, one of law; and yet not entirely, because the adequacy of the laws may depend somewhat upon the nature of the emergency. The second question is one involving considerations of mixed law and fact, peculiarly proper for executive consideration, and as plainly proper to be determined by the local Executive, who alone can have complete access to the necessary information. When he, as the organ of the State, is called upon to furnish troops, he is necessarily required to come to a conclusion whether those troops are attainable by ordinary means, and at once. If not, the call of the Government must be disregarded, or resort must be had to other necessary and proper means. But to disregard the call would be to violate the Constitution of the United States, which gives Congress an absolute right to authorize the President to make the call. In • Michigan the Governor is made, by the Constitution itself, “ Commander in Chief of the military and naval forces, and may call out such forces to execute the laws, to suppress insurrections, and to repel invasions.” He, therefore, is invested with such discretionary powers as are vested anywhere; and, as in the case of the President, he must have sufficient power to carry out any duty imposed upon him by the Constitution or the laws. In military emergencies he has the combined powers of a civil executive and of a military Commander in Chief, subject, of course, to any constitutional restrictions, but subject to nothing which will prevent his obeyiug the Constitution. What might be the consequence of a needless resort to any but the regular and ordinary machinery of arriving at a lawfully prescribed result, where such machinery exists, is only to be regarded when such violation of duty appears. The orders of the President do not contemplate any needless resort to discretionary means, and it is not to be presumed that any such resort has been had without necessity. But it is proper to examine the state law of 1862, with reference to the variations from it which have occurred.

The law provides how an enrollment shall be made, but expressly authorizes the Governor to cause the lists to be made by any other person when deemed necessary for the public safety. Laws 1862, p. 22. Of this necessity the Governor is sole judge. In obtaining from each county the necessary number, the Governor is directed to notify the Sheriff of the number required, and thereupon the Sheriff is required to notify the County Clerk or his deputy; and, together, they are to copy from the lists and put in the box all the names on these lists, and draw them as jurors are drawn; and the persons so drawn, and liable to do military duty, shall be determined to be legally held to serve. In drawing jurors, if a person drawn is known to one of the attendant officers to be dead, or insane, or to have permanently removed from the county, another may be drawn in his stead. Comp. L., § 4363. If the Sheriff and Clerk have a similar power in drafting, they have no further power. The only preliminary method of establishing exemptions, provided for by the statute of 1862, is by application to the assessors, at the annual review of the assessment rolls. Laws 1862, p. 47. The officers are required to note as exempt, at that time, all who are actually exempt by law, whether claiming exemption or not. But the law does not give them final and conclusive powers in the matter, and, if the lists are made out otherwise than by them, it gives them no power at all. It is manifest that if the draft is made by the Sheriff and Clerk under this statute, the number actually drawn may be materially diminished, not only by exemptions, but by personal disabilities, unknown or arising after the annual review. The law of Congress contemplates that, when the States are called upon to furnish troops, they shall furnish able-bodied soldiers; and, although possibly some latitude is necessary in doing this, yet some means of securing in advance, as near as may be, the selection of men who may be lawfully held to service, must be regarded as very desirable, if not absolutely necessary. The appointment of these commissioners, in accordance with the President’s suggestion, to conduct the draft, by making it, or causing it to be made, in what is certainly a substantial compliance with all the safeguards of the statute, furnished a method of securing, with considerable accuracy, against drafting exempts, or persons physically unfit for service. In this matter the Governor has adhered as closely to the law as was possible, and has carried out its, design, by supplying its manifest deficiencies. So far as the arrest is concerned, the law is literally complied with; for it contemplates that other proper officers than the Sheriff may have custody of the delinquent; and, where the person is not to be mustered in within the county, the Sheriff has no power, under his mere official authority, to go beyond his own bailiwick. It is evident that the law can only be carried out by some discretionary agency, under the control of the Governor. But, even if the law in this respect were complete in its details, it permits a discharge by the Sheriff on payment of a penalty, which is not recognized by the act of Congress, and which, if allowed, would prevent the Governor from furnishing the state quota, inasmuch as no draft is provided for in lieu of the person commuting. The Governor has not, in my judgment, gone beyond the fair . exercise of a legal discretion; and it is unnecessary, therefore, to consider how far this Court could, if it were not so, review his conduct.

I am of opinion that the relator is lawfully detained by the Draft Commissioner, under the military authority of the State of Michigan; and that he should remain at the disposal of that officer, as lawfully drafted for service.

Ordered that the relator be remanded to the custody of the Draft Commissioner.