Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1863-08-25

George W Gould. = presented To he bs his attOr
news. r. ID and r L Wtpole. Eos Said vii
liam is ALLEGED to be held a an enlisted s"ldier
in the United States service. while he is under
eighteen years of age
The frs question j. whether I have iuris,iic
ton To hear the case upon the return OF the writ
executed. If have not. ought not to issue
IL.
Personally, il will be gratifying to me If have
not jurisdiction, 49, shall. in that event. tie
lisved OF much unpleasant gratuitous labor.
The question il. n State or Judge de
liver a person from illegal restraint or mnrison
ment. who Is thus held by an officer of the United
States but without any judicial process? | shall
hastily commit NV conclusion this question,
and the grounds on which rest il, Ia writing.
IL is admitted that where person il held by
the proper United States officer. under legal in
dcial process. he can not he taken from such
officer by State process. As property in custody
under Judicial process from Safe or United
States court can not he taken by virtue at process
from any other court; sO Il person ~ custody un
der judicial process from State court not i,e
taken by such process from the Fe ieral courts
and Uice persG. IL Darfe dorr II ". Z.
3 Rep. 1913. Judge Mclean s,s: Ne tier
this nor any other court of the UuiteI SIreS, or
Judge thereof. can issue "A h beas corpus to
bring up prisoner Who il in custody under -
sentence or execution of Site court for al,
other purpose than To he u>e'l a witness IL l.
immaterial whether the imprisonment lac under
civil or criminal process 81 in Abeman. Y.
Booth. 81. How L. ) Rep 5 6. where Ter
son IN custody upon process duly Issued
upon an sfi lavit bv an United States Comns
siouer. he being judci Al officer. u he'd hat
he not ne tx n from tie .-u-to " OF the
Uutel States M,r-hal by process from State
court. This is the point decided in the use TIE
cause such were the facts upon which the tie
ci-ion was IN ,de See Perk pr :. y AS Ser
Story the Const Sec 737. IL has 'e-n
sought To extend the operation ut tins Ablenin
case beyond its facts. Ii l. claimei that person
in the custody of an officer OF the United States
even without judicial process. i ia the custody ct
the Government of the United States, and beyond
reliei by a State court
1t is contended that if United States Marsh i
should. of his own voliton without any process.
seize and imprison a negro. or any other person
and claim 10 hold him fugitive slave. the
Marshal would not. according To the case
Abeman vs.. Booth be liable 10 answer State
writ of habeaS CORPUS tor the release of the
arrested person This is new Interpretation OF
that case. and can not, We think, general
proposition. be correct.
The great leading fact in these cases should
never be forgotten. that our citizens all the time
live territorinllv. within two governments. VIZ
the State and Federal: and that the former POS
sesSes all power over the cit zen not granted I"
the Latter; and. further. that neither the Cnu>t-
tuition OF the United States nor anv act of Con-
gress give 10 the Feieral courts in terms, ex
elusive jurisdiction in such cases have been
mentioned: and Judge Nelson. of the United
States Supreme Court. in l-5l. seems to rule
that "A hudng under the authority of the UniIed
States, to exclude the jurisdiction of the State
courts. must be holding under Legal process
lie saws: LIN such case. that Is when the pris
oner is in fact held under process issued from
Federal tribunal" &c s.. Judge Mclean IT,
Morris VS. Newton. s McLe,n, - Hurd on
II IDEAS Corpus. ia fra Take PRACTICAL ilustra-
ton of the doctrine coniended tor. Suppose the
President of the United 5 aies should issue e.
the United States Marshal for Indiana An order
a. follow:
SIR: The Rev \ " OF Indi 'napolis. does
not preach the true gospel: the Governor of the
State i guilty of undgnhe'i conduct: the Judge
Of the NJ rion Circuit Court has decided ease
erroneousy: Mr. G B merch mt. chtrgeS his
customers too high f,r goods: will. therefore.
arrest those men and place them IN confinement
till further orders Would the State courts be
poverle-s To afford reliefI Suppose the abo, e
order addressed To the Postmaster. and that he
had m ide the arrests being United States "fi
Ger. would the Safe courts he deprived OF juri.
dicuonl Now where military officers max arrests,
without judicial wrts, claiming that the persons
arrested are soldiers, il has been the usage for
) ate Courts, in nearly. IL not IN every State IN
the Union. take jurisdiction aud grant Ills
chtrl e. upon htbeas corr Us. But see Spanelers
case. Am l. Reg \ ;. p. So. JUICE Hof
man, ct New York so late "a 1861. in ID dds
case. Am. L. Reg PCS, say: Whatever
DOUBTS Chief Justice Kent and justice Stor, EN-.
t.rtained OF the right OF State Courts and Stite
Judges 10 hold jurisdiction of the matter, see
Mason. SO. john Rep so. our Supreme Court
explicitly and fullv recognized the ppwer and The
duty of the Safe judge TO give defined party.
enlisted under The laws of the United St,ies the
benefit of n IDEAS corpus- In the mttter oi
Carlton. C0wen. I'll (ie27l the Cur declares
that the enlistment Of minor. without consent
of his ptrent Gu irsii n. voii under the act
OF Congress. aud that he might he discharged by
State authority. This doctrine has been actei
upon by JUICES OF this State from that time u
the present See also. D.snger's ease. IL o ia
ST Rep ESQ: " ,ntan White. 10 Ind. ~
Ought not the officer. IN all cases. 20 show tn the
State Court the authority OF which he detsins M
custody. that the Court nav judge whether il i
legal or not on its tscef And my not the 81 tie
Court then pt>s upon this question:
The Supreme Court OF New II impShire has
said: Ill the laws OF the United STATES justify
the detention OF the applicant. there l. no'h
ing illeg. If they do not. il i nntacise arising
under the laws of the United States. althougn it
may ne unier color or preteH~e OF authority bV vr
tue OF Hose laws. Buts mere pre'ea-e at aafhuri
~ under the laws of the United States j.
no better IN IA anv other preteu>e. II neither
confers an exclusive jurisdiction the court> ot
the Unitei atss, nor Gusts the ordinary jar>iic
ton of the courts OF this State Nor c.n II m Ike
any difference that the illegal Impri-pnmenf, ii
there be one, is bv an officer oil the United Stres
Army The courts of the United States hsveno
exclusive jurisdiction over their officer; citing
II Massachusetts, Reports pD. o. ami o.: the
State Dimick, IL y. h R-p l97: see. also.
Norris Newton. 5 McLs,n. ~: DIsngei : case.
IL Ohio - ,e Rep. 256. aDd Hurd ON be's
corpus. lo2 II seq where the earlier Gases IN
the several States OF the Union re collected.
IL nav be observed that while the Judges OF
the United States courts are worthy OF the utmost
confidence, still the establishment OF the docrine
OF their exclusive jurisdiction in the ca~es of
hate "a CORPUS mentioned would be cause for deep
regret ins-much a. on acc ,unt of the fewness I'm
numher and remoeneSs of locality of those
jud -es iustire would thereby he removed f,r
sway irum almost eyery mans door. and wsuld
BE- obtained. rarely at all, and when il ~. onlv
si great expense and delay. Practically the