Timeline of West Virginia: Civil War and Statehood
June 30, 1863

The following is the decision of Judge Jackson in the case of Ex-Judge Thompson - delivered yesterday in court:

The question arising upon this application are of the gravest import. It is to be regretted, that in a case involving the most important constitutional questions, that the discussion should be marked with so much feeling. This Court has in this case a high judicial duty to perform. On the on hand it has the liberty of the citizen to protect, whilst on the other it is its imperative duty as well as its pleasure, to see that the laws of the country are enforced and the power of the Government maintained. It is the sincere wish of this Court to avoid any collision either with the military authorities of the United States or with the civil authorities of the State, but merely to perform its duty in a firm and temperate manner, without reference to what might seem to be in conflict with the popular prejudices of the day.

The petition field in this case shows that George W. Thompson was arrested at his house near the city of Wheeling, on the 28th day of April, 1863, by a body of United States soldiers, claiming to act under the direction of Major Joseph Darr, Provost Marshal of Virginia; that he was removed by said force to a military prison of the United States in said city, and there detained in custody until the middle of the afternoon on the 17th day of the present month. And whilst a petition for a writ of habeas corpus was pending and under consideration before this Court, he was removed to the county jail of Ohio county, where he was confined until the petition was filed in this case. That he was arrested without process of law or being informed of any charge against him. Upon this state of facts, the Court awarded its writ directed to some four or five persons, either of whom, as was supposed, might detain the prisoner in custody.

Joseph Toliver, the jailer of Ohio county, responded to the writ, produced the prisoner in Court, and returned that he held the prisoner in custody in pursuance of the following warrant:

"Wheeling, June 17, 1863.

To the Jailor of Ohio County:

Receive into your jail, George W. Thompson, of said county, and him safely keep until discharged by the laws of the United States, or by the order of the Governor of this State, as provided for in the Act of Assembly passed February 4th, 1862. Held as a hostage by order of the Governor, as Constitutional Commander in Chief of Virginia Militia.

In addition to this return Governor Peirpoint filed an answer denying the jurisdiction of this Court, and claiming to hold the prisoner as a hostage under an act of the Legislature. As there is no status of the State authorizing the Adjutant General of the State to sign a warrant of commitment of any character, it is unnecessary to discuss the legality of this act, further than to remark that the warrant, if regular, admits upon its face, the jurisdiction of this Court, by employing the language "until discharged by the laws of the United State," and the application under consideration is for that purpose. It is not necessary, however, to rely upon this position to justify the Court in the exercise of its jurisdiction and powers in this case. The evidence of Major Darr, Provost Marshal, is conclusive upon the question of jurisdiction. It qualifies, if it does not contradict, the returns made in this case. Major Darr proves that as an officer of the United States, he arrested the prisoner in the spring of 1862, and subsequently removed him to Camp Chase, a military prison, in the State of Ohio, where he remained several months, when he was regularly exchanged as a prisoner of war, and permitted to return to his house. That upon his return, he re-arrested him, but receiving an order from S. C. Turner, the Judge Advocate, to discharge him, he again released him. The Order is as follows:

"In answer to yours of the 30th ult., relative to Judge Thompson, I say that in case that he does nothing that is disloyal in word or deed, since his return, he cannot be molested for anything that occurred before his exchange. But if there are any disloyal practices since, send the proofs, and he will be promptly attended to." By this paper it is evident that he was at that time, and up to the dates of his present arrest under the control of the Secretary of War. The evidence further showed, that the prisoner protected by this order remained at home up to the time of his present arrest, and had not been guilty of any disloyal practices. - That upon the 28th day of April, 1863, Major Joseph Darr, holding a commission from the Secretary of War was Provost Marshal General for the State of Virginia, with directions to report to Gov. Peirpoint for instructions arrested the prisoner in the absence of Gov. Peirpoint without having consulted him on the subject, and in the absence of special instructions, but as he claims in the exercise of a discretionary power given him by the Governor in his absence. That the Governor ratified his act in the premises upon his return. - That after his arrest he was removed to, and confided in the military prison of the United States, in this city, until the 17th day of the present month, when he was removed to the county jail as before stated. Upon this state of facts the prisoner moved the court for his discharge. The Attorney General having filed objections to the jurisdiction of the Court, the question now arises whether this state of facts will authorize the intervention of this court in the prisoner's behalf.

The act of Congress regulating judicial proceedings amongst other powers confers the power on this court to award writs of Habeas Corpus in certain cases. - Whatever power this Court can exercise in this case is deemed under the 14th sec. of the judiciary act which provides: "That the Courts of the United States shall have power to issue writs of scire, facias Habeas Corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usage of law. And that either of the justices of the Supreme Court as well as judges of the District Court shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in jail unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." It is contended by the Attorney General for the State that the power of this court to issue a writ of habeas corpus under this section is restricted by the proviso and confined to cases where the prisoner is in jail, under or by color of the authority of the United States. This question arose in the case of ex parte Dorr and the Supreme Court in disposing of the cased failed to decide it, though Judge McLean in delivering the opinion of the Court remarks that "no Court of the United States, or judge thereof, can issue a habeas corpus to bring up a prisoner who is in custody under a sentence or execution of a State Court for any other purpose than to be used as a witness. And it is immaterial whether the imprisonment be under "civil or criminal process." This authority is cited and relied on by the Attorney General to sustain his position as to the want of jurisdiction in this case. I am of the opinion that this authority does not sustain that position. All it does decide is that where a prisoner "who is in custody under a sentence or execution of a State Court it is immaterial whether he is confined under civil or criminal process the Federal Courts or its judges will not interfere." It will be perceived that Judge McLean in giving construction to the act of Congress above cited employs the term "under sentence or execution of a State Court." It is not contended in the present case that the party is either under sentence nor execution of any court, nor is he confined under any process from any court. Nor is he held in the language and in the sense that the learned judge uses the term "under civil or criminal process." He obviously employs the term civil or criminal process in connection with the term under sentence or execution of a State court. If this be the construction of that clause of the act of Congress relating to the commitment, that the term commitment is to be used in a judicial sense, that "prisoner in jail" must be confined under sentence or execution of a State Court, or under some process of a State court, then it is clear that the present case does not fall within the rule. If such was the fact, this Court would not hesitate for a moment to dismiss 'the petition.'

There is no such judicial process in this case, and for the purposes of this case it is immaterial whether that construction is the proper one, or whether the term commitment is used in a much broader sense. The act of Congress evidently means that there must be a process or warrant of commitment authorized by law, that it must partake of a judicial character. The Constitution declares that no person shall "be deprived of life, liberty or property, without due process of law." It is but reasonable to suppose that when Congress passed the act relating to the writ of habeas corpus, regarding it as a great writ of right, they had in their minds the Constitutional provision relating to the liberty of the citizens, and that they used the term commitment in a legal sense, and as equivalent to due process of law, which has been held to mean due legal process. If this be the proper construction of the 14th section of the act of Congress above referred to, then there is in point of law no such process of law or warrant of commitment as would interfere with this Court in the exercise of its jurisdiction in this case. But it cannot be denied that the facts and circumstances of this case, if not conclusive, tend to prove that the arrest was made "under or by color of the authority of the United States." The only power exercised is the arrest of the prisoner, was that of the Provost Marshal, who made it without consulting any one, and in the absence of any special authority in the premises. And, as a consequence, the arrest is, in point of law, if not in fact, under color of authority of the United States. As Provost Marshal, he was an officer of the United States, holding a commission under the Federal Government and not under State authority. And if he held a commission under State authority, he could not exercise his power under it so long as he exercised the power and performed his duties under a commission from the Federal Government. His act, to the extent he performed it under State authority, would be nugatory. For, by statute in Virginia, no person can hold an office under the State who holds any office, either civil or military, under the Government of the United States. See Code, page 100. It follows, then, that any authority exercised by the Provost Marshal in the arrest of the prisoner other than under color of authority of the United State is illegal for the want of legal authority to support it. It must then be conceded that the arrest of the prisoner was under color of authority of the United States and that he was in point of law detained in custody under and by virtue of the same authority, at least until the 17th day of June, (if not to the present time,) when he was removed to the county jail. - It appears that his removal took place whilst a petition was pending under consideration in this court praying that a writ of habeas corpus might be awarded directed to Major Darr requiring him to produce the prisoner with the cause of his capture and detention. The removal of the prisoner under such circumstances has the appearance of an attempt on the part of those who detained him in custody to evade the jurisdiction of the court, though such may not have been in fact the intention of the parties. Such a removal would not deprive the court of its jurisdiction. When once the jurisdiction of a court attaches to any subject of controversy it cannot be deprived of its jurisdiction by an effort of any character so long as the subject of controversy is under the process or within the power of the court. If therefore the arrest and detention of the prisoner in the first instance was under or by color of authority of the United States, it is sufficient to give this court jurisdiction, and any subsequent attempt or effort upon the part of those having him in custody to evade the jurisdiction of this court by shifting him from a prison of the United States to a State prison, is a device that this court cannot lend its sanction to, especially in a case where the liberty of the citizen is involved. But it is contended that he is held as a hostage by the Governor. - The facts in this case show that he was under the exclusive control of the War Department at the time of his arrest and being so held no other power could interfere to deprive the Secretary of War of his custody. As late as May the 4th, 1863, the Secretary of War, issued his order to the Provost Marshal long since his present arrest, requiring him in the following language: "To discharge Judge Thompson, provided he be not guilty of treasonable and disloyal actings since his exchange." It is evident from this order that the Secretary of War regarded the prisoner as under his control. He makes a preemptory order for his discharge whilst he was in custody in a military prison of the United States, unless he was "guilty of disloyal actings since his exchange." No such charges are proven or even preferred. It would seem from this order of May the 4th that the War Department does not hold the prisoner as a hostage or for anything else, and no other person has the right to hold him as such. - The act of Congress passed at its last session makes it the imperative duty of this Court to discharge all prisoners not held for some offense other than prisoners of war. The War Department recognizes the validity of the act as well as the power of the Court to enforce its provision. It has furnished this Court with a list of prisoners so detained in pursuance of the law. That list contains the names of some seven or eight hostages seized by Governor Peirpont. The Secretary of War evidently recognizes these hostages as under its control, although seized by the Governor. He reports them to the Courts as such. The Governor cannot and does not claim more in this case. He may indicate how he desires to be seized, but it must be done under the power of the War Department, and subject to its confirmation. It is a well settled principal, that under the Constitution of the United States which is the supreme, law of the land, that Congress can alone declare war, and make all needful and necessary rules and regulations for the purpose of conducting the same. The Constitution expressly reserves the right to Congress. - No State possesses the constitutional power to make war treaties of peace or rules and regulations concerning a war. It is an attribute of Federal sovereignty alone. It is true that a State possesses the inherent right of self-defence. But no State relies, under our Constitution, upon her own natural and inherent rights for defence. By the Constitutions she is entitled to the Federal protection. Without that protection this Court would not be in session to-day, nor would the civil officers of the State be able to administer the government of the State. Every act, therefore, done towards suppressing the present rebellion, although it may be done by a State officer, is in pursuance of the Constitution of the United States and the laws enacted by Congress relating to the subject. The Government of the United States regulates the exchange of prisoners, as well as the seizure of hostages. Any State law passed upon this subject is only a cumulative remedy in aid of the General Government, and would not deprive the prisoner of the benefit of the rules and regulations of war, as laid down by the law of nations relating to this subject. This prisoner is a citizen of the United States and owes his paramount allegiance to that government. He is also a citizen of West Virginia. But West Virginia is an integral part of a great nation, having as a State no independent status among the nations of the earth, and had, therefore, no right as a portion of the Federal Government, to make rules regulating a war in which the Federal Government is involved. I am, therefore, of the opinion that all prisoners and hostages taken in this war, are in point of civil as well as military law, subject to the Federal authorities, and when deprived of their liberty for any purpose, it is by color of the authority of the United States. And, in this case, the military authorities of the United States not claiming the further detention of the prisoner, he is entitled to a discharge. But, in disposing of this case, the Court cannot close its eyes to the condition of the country and the circumstances by which we are surrounded.

It cannot ignore the fact that the loyal portion of the country are engaged at this time in a most patriotic effort to suppress a most wicked rebellion, which is attempting to destroy the Government of the United States. And whilst the citizens has a right to appeal to the courts of his country for protection, he has a reciprocal duty to perform. And if he fails to discharge that duty, the Government has a right to demand in return for the protection he receives at its hands, his most earnest support. Supposing this view of the duty and rights of the citizen to be correct, before this prisoner will be discharged from custody he will be required to take the oath of allegiance to the United States, or if he declines to renew his allegiance, he will enter into a bond in the penalty of five thousand dollars, with the usual conditions, and execute his written parole of honor that he will for the present leave the State in a day or two, to remain away during the pleasure of the military authorities of the United States, or until he takes the oath of allegiance to the United States; otherwise he stands committed until the further order of this Court.

Timeline of West Virginia: Civil War and Statehood: June 1863