Ex parte Coupland

• Decision Date: 01 January 1862
• Parties: EX PARTE F. H. COUPLAND.
• Court: Texas Supreme Court

26 Tex. 386

EX PARTE F. H. COUPLAND.

Supreme Court of Texas.

1862.

The respondent to a writ of habeas corpus must produce the body of the person alleged to be illegally detained before the judge or court issuing the writ, if in his custody or under his control at the service of the writ, unless excused from so doing by the circumstances indicated in art. 149, Code Criminal Procedure; and a return not accompanied by the body will be scanned with great caution.

If a party has been released from custody previous to the service of the writ, its object and purpose has been accomplished, and the court will make no order on the subject.

A different rule prevails when the court has obtained jurisdiction by service of the writ; when once obtained it cannot be defeated by the wrongful act of either party.

The object of the writ is to relieve the party from illegal restraint, and not to afford him redress for the illegal restraint.

Upon the hearing of an appeal in cases of habeas corpus, the applicant need not be personally present in the appellate court.

The rule of the court, not to hear appeals in criminal causes when the defendant has escaped, is merely a rule of practice, depending, in its application to particular cases, upon the discretion of the court.

A party's right to a writ does not depend on the legality or illegality of his original caption, but upon the legality or illegality of his present detention.

The act of the Confederate congress, entitled “An act to provide for the public de fense,” approved April 16, 1862, commonly known as the “Conscript Law,” is constitutional.

It is a general proposition that it is incumbent upon those who maintain the constitutionality of an act of the Confederate government, to show that the authority assumed by the Confederate States is sanctioned by an expressly delegated power, or that the act itself is necessary and proper for the carrying into effect an expressly delegated power.

In determining the constitutionality of a law passed by the Confederate government, it is important to consider whether the act in question is done in the exercise of a power expressly granted, or under the implied powers granted by the 18th paragraph of the 8th section of the 1st article of the constitution; if it is the first, then the Confederate government may use its discretion in the mode and manner of its exercise, unless it is limited or restrained in so doing by some other express provision, or by some clear and necessary implication; and the burthen of showing this is upon those who assert the limitation.

The authority given “to make all laws which shall be necessary and proper for carrying into execution” the expressly granted powers, was not intended merely to authorize congress to exercise by legislation the powers previously granted; its right to do so depends in no manner upon this clause, but it is itself a direct grant of all such subsidiary and incidental powers as shall be ““necessary and proper” to carry into effect the previously granted powers; and it is incumbent upon those who maintain it to show, not merely that it is a “““necessary” law, but that it is a “necessary and proper” law for carrying into effect the expressly granted power.

If there were no express grant “to raise and support armies,” the right of the Confederate government to raise and support armies could be sustained under the general granting clause contained in the 18th paragraph, 8th section, article 1 of the constitution; and the law in question is in strict accordance with it.

The “power to raise and support armies” is an express constitutional grant to the congress of the Confederate State; and there is no limitation as to the mode or manner of exercising it, by any other express provision, or by any necessary implication.

The Conscript Law does not violate any of the abstract or guarantied rights of the citizen, nor assume over him any control not delegated by the constitution.

The grant of the power to make war carries with it by necessary implication, unless expressly withheld, the right to demand compulsory military service from the citizen; this express power, together with the implied powers, is vested in the congress of the Confederate States.

The power to call out the militia, which is a compulsory service, does not limit the power to raise and support armies; nor is the right to raise and support armies to be taken in subordination to the power conferred over the militia.

The general government is not dependent upon the will either of the citizen or of the state, to carry into effect the power to raise and support armies.

While both the Confederate government and the state government possess some of the powers which are called by law-writers, in distinguishing different forms of government, “sovereign powers,” neither of them are themselves sovereign, but each of them represents the sovereign, and both have within their mutual spheres of action just such powers and functions as have been conferred upon them by the constitutions creating them.

Congress can exercise, in its judgment and discretion, the “power to raise and support armies,” to the extent of raising and supporting such armies as are absolutely essential to enable it to carry into effect the powers granted to it; beyond this congress cannot go; so long as the necessity exists, the exercise of the power is constitutional; when the necessity ceases to exist, its continuance would be unconstitutional.

Mr. Justice Bell concurred in the opinion of the court upon the questions of practice, but dissented as to the constitutionality of the conscript law, for the reasons assigned in his opinion.

APPEAL from the judgment of Chief Justice Wheeler, sitting in chambers at Austin.

The facts appear in the opinion of the court.

Hancock & West, for appellants.

Attorney General, for appellee.

MOORE, J.

The relator (Coupland) applied to the chief justice on the 16th of July, 1862, in vacation, for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by R. T. P. Allen, in Travis county, as he believed, “without any order or process whatever, or any color of either.” The writ issued, and Allen made return that the relator was placed originally in his custody by order of R. J. Townes, provost marshal of Travis county; but that before the service of the writ upon him, the relator had been enrolled as a soldier of the Confederate States, as a conscript, under the act of the congress of the Confederate States, entitled “An act to further provide for the public defense,” and had selected his company, been attached to it and had been discharged from his original detention; and at the service of the writ, was only detained as a soldier of the Confederate States, belonging to a regiment of which respondent was colonel. On the hearing, the relator was remanded into the custody of the respondent. From this judgment the relator prosecutes this appeal.

The first question for our decision arises upon a motion by the attorney general, who appears on behalf of the respondent, Allen, that the application should for the present be continued, because, as he alleges, the relator, since he was remanded by the judgment of the chief justice into the custody of the respondent, as a soldier in the regiment of which he was in command, has deserted, and is no longer in the custody or under the control of the respondent. This motion is founded on an affidavit of a lieutenant belonging to said regiment, from which it appears that the relator, together with other members of said regiment, after his return to it, was furloughed until the 15th of September last, at the expiration of which time he was ordered to report for duty at Tyler, Smith county, Texas, where the regiment was ordered to rendezvous; but up to the 25th of September, when affiant left camp, he had not joined the regiment or been heard of by him.

This motion is urged upon two distinct grounds; first, that the court has no jurisdiction on the application, if the relator has escaped from the custody to which he was remanded by the judgment from which he appeals. Secondly, if the court has jurisdiction, it will not act upon his application while he is at large. There is no doubt that in answer to the writ the respondent must produce the body of the person alleged to be illegally obtained, if in his custody or under his control at the service of the writ, unless excused from so doing by the circumstances indicated in art. 149, Code Criminal Procedure; and that a return to the writ not accompanied by the body will be scanned with great caution. Hurd on Hab. Corp. 244. And although this is to prevent evasions of the writ and to secure the liberty of the citizen, yet if the party has been released from custody previous to the service of the writ, its object and purpose has been accomplished, and the court will take no order on the subject. Commonwealth v. Chandler, 11 Mass. 83; U. S. v. Davis, 5 Cr. C. C. 652. The only object of the writ is to relieve the party detained from the illegal restraint; if this is accomplished before the jurisdiction of the court attaches by the service of the writ, there is nothing upon which it can attach. It is not the object or intention of the writ to punish the respondent, or afford the party redress for his illegal detention. But the question occupies a different attitude after the jurisdiction of the court has been attached. It cannot then be defeated by the wrongful act of either of the parties. It is expressly provided by the Code of Criminal Procedure (art. 762) that upon the hearing of an appeal in cases of habeas corpus, the defendant (who undoubtedly must be understood to be the prisoner or party detained) need not be personally present.

The second ground of the motion, we think as a question of practice is well taken, if the facts of this case called for its application; and were it not, also, that from the character of the...