Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-07-15


commentaries and was so published in each success.
siye edition Of his work until his death. CSee-l
Kents Com. 4O0-401) ooo>
ain the case of Ferguson 70 Johns. Rep. 2s9 an
application was made to the Supreme Court OF New
York, for an allowance Of habeas corpus 70 oring
up the party alleged to be detained IN CUSTODY 1y
an officer of the army Of the United States, on the
ground of being an enlisted SOLDIER and the aliega
ton was that he was an infaat and not duly enilst.
ed It was much discussed, whether the state
Courts had concurrent jurisdiction by aoeas corPuS
over the question of unlawful Imprisonment when
that Imprisonment was by an officer Of the United
States by color under pretext Of authority 81 tne
United States TheSupreme Court dld not decide the
question. and the motion was denied on other
Grounds but subsequently in the matter of Stacy,
10 Johns. 1881 the same Court exercised jurisdic-
ton in q similar case, by allowing and enforcing
obedience to the writ of habeas corpus The
Question was therefore settled in favor Of con-
current jurisdiction in that case and there has been
a similar decision and practice by tho Courts of
other States" See also Hurd on ha6e0s corpus,
book q chap. J. sec B. where many cases are stated,
which show the correctness of Chancellor Kents
assertion
To the cases mentioned by Hurd may be added
that of Mason, decided in this State and reported
l Murph. 1885, The question of the compatibility
of the jurisdiction of the State Courts with that of
the Courts of the United States seems thus to have
been proved conclusively by long experience of their
harmonious action and the general acquiescence of
the country in it,
But it has been recently said that this is all
mistake ard that the decision Of the Supreme Court
of the United States in the case Of Ablensan os.
Booth 81 Haw. SOC, is directly opposed to the sup
position Of a concurrent jurisdiction in the Courts
of the State with those Of the Federal government
With the decision in that case I entirely concur;
and think that it is clearly shown in the opinion
of the Chief Justice of this Court filed in this case
that the remarks of fancy, c. j., in giving the opin
ion of the Supreme Court of the United States,
not fairly be construed to sustain the doctrine
tended for by the supporters of the exclusive jurs
liction of the Federal Courts
Another case recently decided by the Supreme
Court Of Alabama has also been invoked to the aid
Of those who oppose the concurrent jurisdiction Of
the State Courts The case is that Of Er parte HiM
decided at the last January term Of the Court, and
reported and published in pamphlet form by Mr..
Shepherd the reporter Of the Court An attentive
examination Of the case will show, that though the
decision of the Court is right it cannot be used as
an authority for the purpose for which it has been
cited. l will premise that the Court is composed
of three Judges, of whom only the Chief Justice,
A j. Walker and Stone, Judge, were present the
other Judge R ". Wakes, being detained at home
by providentiAl causes. The Court agreed in the
conclusion that the Judge, whose action they were
reviewing, should not issue the writ Of habeas cor
pus upon the petition before him. The Chief JUS
tice put his opinion upon the ground of want OF
jurisdiction in tho Courts of the State, but Judge
Stone expressly said IL withhold the expression of
any opinion all those cases. in which the party,
either by name, as one of class Sect stands,
absolutely and Internationally, exempt from con.
scription withoutany othor qualification than thathe
is of the given class; such for example, as persons
under the age Of eighteen years or over fortyive
officers judicial and executive of the Confederate
and State governments, &C." The Judge then went
on with his argument to show that the petitioner in
the case before the Court was not exempt from con-
scription under the law of Congress. In doing so,
it seems to me he himself member of the Court
was assuming Jurisdiction of the case. If he had
the right to construe the act of Congress for the
purpose of ascertaining that the party was not en-
titled to exemption he had the same right to con-
srue the act il his construction led to the conclu
sion that the party was exempt power to con-
srue the act at all involves necessarily jursdic-
tion in the Court If this be SO, then the Court
was equally divided upon the question of jurisdic-
tion and therefore, there was no decision enef way
upon that question
Another case reported in the same pamphlet and,
suppose, decided at the same term, shows mani
festly that the Court assumed and exercised juris
diction over the cause. The case is that of Es
parte Strinqer. The party being in custody as
conscript, applied for a writ of habeas corpus upon
the ground that he was regular member of the
"Ohristian Church." and had CONSCIENTIOUS scrY
ules against bearing arms Stone, Judge, delivered
the opinion of tho Court in which it was decided
that the acts Of Congress known as the "Conscrip-
tion laws" were constitutional; and that the petit
TONER did not come within any of the exemption
clauses of those laws The opinion closes thus
As the opinion of the entire Court is not yet an
nounced nor indeed formed, on the broad question
Of the jurisdiction of the State Courts in cases like
the present and as we feel hesitation in refusing
the present application on the merits, we place our
refusal on the ground stated above. The prayer OF
the petitioner is denied"
IF the Court had no Jurisdiction Of the cause
should like to know how it acquired the power to
decide the case upon its merits From this EXAM
inatou it is manifest, think, that neither the Ala
hama case nor that of A6leman os. Booth, has les.
sened in any sensible degree, the weight Of author
ity in favor of the concurrent jurisdiction of the
State Courts in cases like that now under consd-
Grafton. >.
In closing this opinion I will take occasion to re.
turn my thanks to the counsel on both sides for
the aid which they have given to the Court BY their
able and well considered arguments
- .-6 WILL: II. BATTLE.
QUEER PRocEEDMG The Secretary of the Trea
sury advertises for sale $5,O0O,0O0 Of "Cottor
Bonds" Bids will be received until the 20th inst
and those whose bids accepted are to pay up in
ten days after notice of acceptance. Mr.. Memmin
ger adds that payment must be made in curren
Treasury notes. one half at least of which shall b,
of issues subsequent to the LIST April 1857. Ap