The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-08-08
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nullify the CONSUMPTION Law and resist the
draft, disloyal men and newspapers seem
ed TO have agreed with considerable una
nimity on a plan for arraying the State
against the National Government by help
OF Habeas Corpus and the State Courts. It
was proposed that whoever was drafted
should sue out a habeas corpus from some
Court presided over by dfsloyal Judge.
and that upon the hearing on the writ the
Judge should pronounce the conscriptlon
act unconstitutional, and therefore dis
charge the conscript, who was TO go on his
way rejoicing. The recent instructions of
Provost Marshal General Fry, in anticipa
ton of this purpose. direct his subordinates
not to produce the deserter or conscript be-
fore State Court in obedience to writ Of
haheas corpus, and the conspirators whose
plot is thus frustrated have made haste to
denounce the instructions as an outrage
upon the Judiciary and the rights of the
States. They propose that a Marshal re-
fusing obedience to the obedience to the
writ shall be proceeded against by attach
ment for contempt; that the Sheriff serving
that process shall appeal to the State Mill
tia to enforce it, and finally that Gov. Sey-
mour shall put himself at the head Of his
State troops in battle array against the Ma
tional forces. By the time this is accom-
plished, it is expected that very material
diversion in favor Of the rebellion will have
been accomplished; or, in other words,
that Northern Rebellion shall be organ
lied with military force. All this is based
upon the supposed respect Of the people for
legal forms and Constitutional rights, and
might be in that view very good plot but
for one consideration. The Supreme Lourt
of the United States has already decided
the question on which this issue is to be
made, and has decided it adversely to the
authority of the State Courts.
The case of Ab1eman ogt. Booth, 21 How
ards Supreme Court Reports, 506, is well
known, both to the legal profession and the
country, as that in which the effort of the
Supreme Court of Wisconsin to protect a
citizen of that State against Federal perse-
cution was finally defeated. Booth was ar
rested on a United States Commissioners
warrant, for aiding and abetting the escape
of an alleged fugitive who had been arrest
ed under the Fugitive Slave Act OF 1850.
Hewas discharged from the custody of the
U. s. Marshal by the Supreme Court of the
State, on the ground that the Fugitive
Act was unconstitutional; exactly the
ground on which it is now proposed that a
conscript shall be discharged, so that the
two. cases are in all respects IDENTICAL
Booth was legally in the custody of the U.
S. Marshal, just as the coascript will be
legally in the custody of the Provost-Mar-
shall. But the United States Court decides
not only that he should not have been dis
charged because the law was constitution
al, but goes further and declares it to be
duty of the Marshal NOT TO OBEY THE PRE-
CEPT OF THE STATE AUTHORITY. He is to
make, known to the State Judge that he
holds the prisoner under United States
process, but is not to produce the prisoner
in obedience TO the writ of habeas corpus
from the State Court. This decision is the
unanimous opinion of the Supreme Court
ofthe United States, and is pronounced by
no less a person than Chief Justice fancy
himself. 1t is so full and emphatic, and so
completely disposes of the whole case, that
We copy the material portion of the opin-
ion.a Judge fancy says:
1--WE do not question the authority Of a
State Court or Judge, who is authorized by
the laws of the State to issue the writ Of
habeas corpus, to issue it in any case where
the party is Imprisoned within its terrific
rial limits, provided it does not appear
when the application is made that the per-
son imprisoned is in custody under the au-
thority of the United States. The Court or
Judge has right to inquire, in this mode
of proceeding, for what cause and by what
authority the prisoner is confined within
the territorial limits of the State sover-
eighty; and it is the duty Of the Marshal,
OF other person having the custody Of the
prisoner, to make known to the Judge or
Court, by a proper return, the authority
-. ~ 80 Us nm III Surs'ouS' illS
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.o M .I % 'lie I,.eu STATES,
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C,al.t - ninqe' anu th9 stare, Juoge or
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2"tSotcs;osS o. ne o'atted 'StoteS. II ne mas
committed an oiiense against thelr laws,
their tribunals alone can punish him: II
he is wfongiuliy impfllsoneS, IhelI J 1a1 CA!
tribunals can release nun anu aHoLa h!ll
i - .ho dntn of tha Niarshs1 or other s nar,
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n 1Tn rat,,Tn the authority nnder Which
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