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WISE v. WITHERS.

February 1, 1806

WISE
v.
WITHERS.



ERROR to the circuit court of the district of Columbia, in an action of trespass vi et armis, for entering the plaintiff's house, and taking away his goods. The defendant justified as collector of militia fines. The plaintiff replied, that at the time when, &c. he was one of the United States justices of the peace, for the county of Alexandria. This replication, upon a general demurrer, was, by a majority of the court below, adjudged bad; whereupon the plaintiff sued out a writ of error, and the questions made on the argument were, 1. Whether a justice of the peace, for the county of Alexandria, was liable to do militia duty? and 2. Whether an action of trespass will lie against the officer who makes distress, for a fine assessed upon a justice of the peace by a court martial?

The opinion of the court was delivered by: By the act of congress, those appointed for the county of Alexandria, are to exercise the same powers and duties as justices of the peace in Virginia. The expression in the act of 1792, 'officers judicial of the government of the United States,' means only the judges of the supreme and inferior courts of the United States. Justices of the peace in the states are not considered as judicial officers. By the constitution of Massachusetts, the judicial officers are to hold their offices during good behaviour, and yet the commissions of justices of the peace are limited to seven years. So the constitution of the United States says, that the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour; but by the act of congress, the justices of the peace in the district of Columbia, are to hold their offices only for five years. These justices, therefore, are either not judges, or the constitution has, in this respect, been violated. It is plain, however, that congress did not consider then as judges. A sheriff sometimes acts as a judicial officer in holding elections; and some of the officers in the executive departments, exercise judicial functions in many cases, but they are not, therefore, judges. An act of congress may give judicial powers to certain officers, but they are not, therefore, judges.

C. Lee, for the plaintiff in error. This case depends upon the act of congress of March 3d, 1803, entitled 'an act, more effectually to provide for the organization of the militia of the district of Columbia,' vol. 6, p. 237.

The 6th section says, 'that the commanding officers of companies, shall enrol every able bodied white male, between the ages of eighteen and forty-five years, (except such as are exempt from military duty, by the laws of the United States) resident within his district.'

The act of congress of the 8th of May, 1792, vol. 2, p. 93, § 2, exempts from militia duty, 'The Vice-President of the United States; the officers, judicial and executive, of the government of the United States; the members of both houses of congress, and their respective officers; all custom-house officers, with their clerks; all post-officers, and stage-drivers, who are employed in the care and conveyance of the mail of the post-office of the United States; all ferrymen, employed at any ferry on the post-road; all inspectors of exports; all pilots; all mariners actually employed in the sea-service of any citizen or merchant within the United States; and all persons who now are, or may hereafter be, exempted by the laws of the respective states.'

This act applies not only to such officers as then existed, but to all such as might thereafter be created.

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

In Marbury's case, ante, vol. 1, p. 168, this court decided, that a justice of the peace, for the district of Columbia, was an officer, and that he became such as soon as the commission was signed, sealed, and ready to be delivered. If the commission, therefore, is a criterion, to decide who is an officer, we are at a loss to conceive what objection can be taken.

The justices of the peace for the district of Columbia, are appointed by the president of the United States, by and with the advice and consent of the senate, and are commissioned by the president. Their powers and duties are prescribed by the act of congress, 'concerning the district of Columbia, vol. 5, p. 271, § 11. Whether those powers are judicial or executive, or both, is immaterial.

Jones, contra.

1. A justice of the peace, in the district of Columbia, is not a judicial officer of the government of the United States.

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

3. The circuit court of the district of Columbia has not jurisdiction of this question. The question who is to be enrolled in the militia, and the assessment of the fines, are matters submitted exclusively to the courts martial, which are courts of peculiar and extraordinary jurisdiction, specially appointed for that purpose, by the act of congress, vol. 6, p. 244, § 8. The words are, the 'presiding officer shall lay before the said court (the battalion court of inquiry) all the delinquencies as directed by law, whereupon, they shall proceed to hear and determine.' There is no provision for revising the decisions of those courts martial.

They are final and conclusive, like those of an ecclesiastical court, or a court of admiralty.

If they have jurisdiction, and especially if they have exclusive and final jurisdiction in the case, the officer who executes their orders is justified. ...


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