Daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1859-1865, 1863-07-01


If there are any disIoyal prsctiscs 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
date 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 bad not
been guilty of any disloyal practices
That upon the 18th day of April, 1863,
Major Joseph Darr, holding commission
from the Secretary of War "as Provost
Marshal General for the State OF virginia,
with directions to report to Gov Felrpqlnt
for instructions, arrested the prisoner IN
the absence of Gov. Pierpont without hav-
ing 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 confined in the military prison of the
United States, in this city, until the 18th
day of the present month, when he was
removed to the county Jail as before stated.
Upon this state of facts the prisoner NOV
ed the court for his discharge. The Attor-
uey General having filed objections to the
jurisdiction of the Court, the question now
arises whether this state of facts will au-
thorize the intervention of this court in the
prisoners behalf.
Tee act of Congress regulating judici-
al proceedings amongst other powers con-
fers the power on this court to award writs
of Habeas Corpus 10 certain cases
Whatever power this Court can exercise in
this case is deemed under the l4th sec.
of the judiciary act which provides: "That
the Courts of the United States shall
have power to issue writs of Seire, 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 usages of law. And that
either Of the justices of the Supreme Court
as well as judges of the District Coart shall
have power to grant writs of habeas cor
pus for the purpose of an inquiry into the
cause of commitment Provided, that Writs
Of babeas corpus shall in no case extend
to prisoners in jail unEess tDhere 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 ne
cessary to be brought into court to testify"
1t is commended by the Attorney General
for the Statesthat the power of this court
| to issue a writ of habeas corpus under this
section is restricted by the proviso aud
confined to cases where the prisoner is in
Jail, under or by color of the authority of
the United States. This question arose 10
the case ofex psrte Dorr and the Supreme
Court in disposing of the case failed to de-
eide it, though Judge Mclean in delivering
the opinion of the Court remarks that emo
Court OF the United States, or judge thereof
can issue a habeas corpus to bring up a
tence or execution of State Court for any
other purpose than to be used as a witness.
And it is immaterial whether the impris-
onment be under "civil or criminal pro.
cess" This authority is cited and relied
on by the Attorney General to sustain his
position as to the want of jurisdiction in
this case. l am of the opinion that this au
thority does not sustain that position. All
it does decide is that where a prisoner
''who is in custody under sentence or
execution of State Court it is immaterial
whether he is confined under civil or
criminal process, the Federal Courts or its
| judges will not interfere" II will be per-
ceived that Judge Mclean in giving con-
struction to the act of Congress above cited
employs the term ''uuder sentence or execu-
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 iu the sense that the learned Judge
uses the term "under civil or criminal pro.
cess" He obviously employs the term
civil or criminal process in connection
with the term under sentence or execution
OF State court. Ifrhis be the construc-
ton of that clause of the net of Congress
relating to the commitment, that the term
= l.. =
sense, that "prisoners in Jail" must be con.
fined 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 that rule. If such
was the fact, this Court would not hesitate
for moment to dismiss the petition
There is no such judicial process in this
case, and for the purposes ofthis case it i.
immaterial whether that construction is the
proper one, or whether the term commit
meut is used 10 a much broader sense
The act of Congress evidently means thai
there must be process or warrant of com
, mitment 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 hui
reasonable to suppose that when Congress:
passed the act relating to the writ of ha.
beas corpus, regarding it as great writ
of right, they had in their minds the Con.
stitutional provision relating to the liberty
of the citizen, and that they used the tern
commitment in legal sense, and as equiv.
alent to due process of law, which has
been held to mean due legal process II
this be the proper construction of the 18th
section of the act of Congress above re.
ferred to, then there is in point of law NO
! such process of law or warrant of commit
+ ment as would interfere with this Court il
+ the exercise of its jurisdiction in this case
But it cannot be denied that the facts and
circumstances of this case, if not concIu.
7 siVe, tend to prove that the arrest was
made "under or by color Of the authority
of the United States" The only power
exercised in the arrest of the prisoner weS