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

question, the State Court has power to put con-
struction on the act of Congress under which the
| o1cer justifes the Imprisonment or detention. q
10 oppose this array of authorities and reason,
| Mr. Strong relies ON two cases Ableman vs.. Booth,
81 Howard 506 and "Hill's case" recently deci-
ded by the Supreme Court of the State of Alabama.
With the decision in Ableman VS.. Booth, u How
ard $685. we entirely concur, and agree with Fancy;
Ch Justice, that it is 80 new and unprecedentea
attempt made for the first time BY State Court,
to assume not merely an exclusive jurisdiction nnt
jurisdiction controlling the District Court OF the
United States. This decision of the Supreme Court
Of the United States IN no wise impugns the con-
current jurisdiction of the State Courts which has
been settled by the authorities and reasoning to
| which we have referred. Two cases were present
| ed. Booth was arrested under warrant OF the
Commissioner appointed in pursuance to an act OF
Congress in respect to fugitive slaves under charge
of having aided in the rescue of fugitive slave;
| and upon examination before the Commissioners,
probable cause being shown he was committed 70
answer charge Of the United States for INSIDE
meanor before the district Court in the State OF
Wisconsin; he gave bail for his appearance, but
was Afterwards surrendered by his bail and mpris-
oned by the marshal, whereupon he obtained writ
of ha6sas corpus from judge Of the State and was
discharged. After being discharged the grand jury
found bill of Indictment against him IN the Dis
trict Court upon which he was tried and convicted
and sentenced to pay fine and be imprisoned
While in prison under this sentence, he obtained
writ of Aabeas corpus from the Supreme Court. OF
the State and was discharged; whereupon the Su-
preme Court of the United States had the matter
brought before it writ of error and decided that
Booth 10 the first case was legally in CUSTODY OF
the marshal on a warrant of commitment to answer
charge for an indictable offence before the District
Court and in the second was in Jail under the
sentence of the District Court the State had no Ju-
risdiction by ha6eas corpus 10 take him out of the
custody of the marshal or out of the Jail and dis
charge him. This was the decision in the case aud
if the language used by the Chief Justice in deliv-
cring the opinion is construed in reference to the
facts Of the case before the court there is nothing
either in the decision or tho opinion which denies
the concurrent jurisdiction of the State Courts 1t.
is true the language is susceptible of wider mean
ing, and may afford room Tor an inference that the
learned Chief Justice "goes outside Of the record,
and expresses opinion against the jurisdiction OF
the State Courts In all cases. where one restrained
ofhs liberty by an officer agent of the government
Of the United States, although the Imprisonment be
unlawful and is not authorized by the act Of Con-
gress under which the officer processes to act, but
in our opinion such an inference will do great in
Justice to that able urist he surely could not have
intended to put his obiter dictum" in opposition
to the series Of authorities above referred to- with
out making any allusiOn or reference to them, or
any attempt to controvert the reasoning upon which
they rest. However this may be, the decision docs
not conflict with the concurrent jurisdiction OF the
State Courts and the obiter dictum if it be one is
not entitled to the weight of all authority and must
be treated simply as the opinion Of an able lawyer
on question not presented by the facts before the
Court, and entitled only to that degree Of considc>
ration which its intrinsic merit will command
The same remarks are applicable to the case Of
Hill and others, recently decided by the Supreme
Court of the State of Alabama. The petitioners
claimed to be entitled to exemption by reason of
bodily incapacity, but had not been held unfit for
military service IN the field by surgeon under the
rule prescribed by the Secretary of War. We full
ly concur in the decision of the case before the
court; indeed during the last Spring refused the
application Of two persons, who claimed exemption
on the ground Of being unfit for military service
in the field by Of bodily incapacity," because
by the proper construction of the exemption act
only those persons are exempted, who Shall be held
unfit for military service in the field by reason of
bodily incapacity under rules to be prescribed by
the Secretary of War;" and according to these rules
it was necessary that the party should be examined
by Surgeon or Board of Surgeons appointed for
that purpose, and the certificate of the Surgeon
Board Of Surgeons was the only evidence Of bodily
ncapacty that could be acted On as evidence of the
fact 50 in that case the parties were not unlawful
ly restrained Of their liberty but we're lawfully in
custody of the officer of the Confederate States nn-
der the authority of the acts of Congress according
to their proper construction. Consequently that
decision is not opposed to the jurisdiction of the
State Courts, when by the proper construction of
the acts of Congress- one who is not liable to con-
scrption, or who is exempt, is restrained of his
liberty against law That portion of the opinion
and reasoning of the learned Chief Justice which is
not applicable to the case made by the facts before
the Court, has received from us due consideration
On the argument this position was taken: Con-
gress may authorize the President to suspend the
writ of haIeas corpus; this would not apply to the
State tribunals and if the State Courts and Judges
have power to issue the writ when person is i'm
prisoned by an officer of the Confederate States,
the suspension Of the writ so far as the tribunals
vain and nugatory: This reply answers the posi-.
ton: The act of Congress would specify the cases
in which the writ might be suspended, or would in
general terms authorize the President to suspend-it
in all cases where person shall be imprisoned BY
order Of the President. And as the acts of Con-
gross made in pursuance of the Constitution are
the supreme law of the land, it follows that such
an act would be as imperative on the State Courts
and Judges as on the tribunals of the Confederate
States.
This position was also taken: II is admitted that
should Judicial tribunal of the Confederate States,
by its construction of an act of Congress- subject
citizen to Imprisonment wrongfully, the State
Courts, having only concurrent Jurisdiction, could
not interfere. to prevent the oppression; and on
what ground can they have any more power to pre-.
vent oppression on the part of the Executive f we
may suppose such case,) than to prevent oppres.
sion on the part Of Confederate judiciary? This
reply We think is conclusive answer: The judicial
tribunals Of the Confederate States have iursdic.
tion consequently any adjudication of those tribu-
nails would fix the construction of the act of Con.
gress and the State Courts could not review or re-
verse its decision Whereas the Executive branch
of the government has no judicial power, and any
construction it might give to an act of Congress
would be the subject of review either by the State
zen is unlawfuy deprived of his liberty or proper.
ty by an Executive officer acting under an erro-
neous construction of act of Congress- the State
Courts may give redress, as in Slocum VS.. Ms.
berry, sup
This further position was taken and seemed to