Washington telegraph., 1863-06-03
IMPORTANT DECISION.
SUPREME CoURr, Dec. Term, 1923.
(CoPY.)
Ferguson on Petition for Nqnd1mus, u.s. Gran
Judge &c.

(CoPY.)
Ferguson on Petition for Nandanlus, rs. Green
Judge, &C.
OPINION DY JUSTICE ENGLISH.
Fernando @. Herbert, enrolled and held for
service ms eonscript by Elijah Ferguson, an
enrolling officer of the Confederate States, was
discharged on habeas corpus BY the Judge Of
the County Court of Hampstead County, in
which county Herbert resided and was en-
rolled
The enrolling officer petitioned the II on L.
d. Green Judge Of the 9th Judicial Circuit. tc
review and quash the proceedings had before
the County Judge, on esrti0rari, upsn tbs
-rounds-lst That the County Judge had 10
jurisdiction to relieve on habeas corpus per
son held in custody as q conscript by con
Tolerate officer; and "a. That the petition OF
Herbert showed no sufficient cause for his dis
charge.
The Circuit Judge refused to issue the writ
Of certiorGTi; the enrolling officer applied q
this court for maEdamus to compel him K
issue the writ; m alternative nandamus Wa
awarded. 10 which the Judge has responded
setting out his reasons for refusing to grant
the certt0rdri- and demurrer has been inter.
posed IN the response.
!. II is first 10 Le determined whether the
charge, on habeas corpus, person held to SER
vice coHscript by an enrolling officer Of the
Confederate States
Tue common law of England, careful of the
personal rights Of the subject. provided the
great writ Of habeas corpus as a remedy for
illegal imprisonment, or unwarranted restraints
upon personal liberty. Whether the subject
was deprived ~ Ms liberty by the fat Of the
king ana biz mini ter, by the act Of an inferior
officer of the crown, or private person. he
was alike entitled. upon a sufficient showing.
to thc hencht If the writ, TO the end that the
cause of hi imprisonment might be enquired
into by tie proper judicial tribunal.
IL was a high preraEative writ. and therefore
b., the common law issued out of the King.
bench. not only in term but also during the
vacation, by q flint from the Chief Justice Of
any other of The judy >, and on into al parts
Of the kings dominious.
The privilege of :he writ ~ habeas corpus
was brought from England by settlers Of the
British colonies ia America. ms part OF their
common law inherita ce; was watched By them
with much vigilance. and preserved with eau
tious jealousy iu the organization of their loca
government. and remained in full force as 4
remedy f1r Illegal imprisonment in their CO.
loriaI courts to tho time of the revolution and
subsequently in their State courts to the time
of the adoption of the Constitution of tn,
United Statss.
At the time NJ .hc adoption of the Constitu-
ton ri tbs Uuitel States. the writ Of habea.
corpus wa issued exclusively. and necessarily
So. by the STATE courts. in their respective and
appropriate lUca! iuris iictions. because the
Articles Of Confederation created no confrie-
rate court with power TO issue the writ.
The Constitution NJ the United States pro-
1 ~, H..
ferior Court. 70 be invested with judicial power
in All cases, in law and equity, arising under
tie Constitution. the laws and treaties Of the
United States, Ec &c.: and the judiciary
Act. passed by the first Congress held under
the Constitution. declared that the courts oi
the United States should have power TO issue
writs of habeas corpus, and all other writs
SC. which might be necessary for the exercise
Of their respective jurisdiction. The result
was, that the courts of the United States were
Invested with exclusive power to issue writs Of
habeas corpus in particular classes Of cases;
the State Courts remained invested with exclu
sive jurisdiction 10 il nc tbs writs in other and
much the larger class Of cases: and there was
remaining class of cases in which the jurs-
liction Of the courts Of the two governments
was concurrent.
The judicial system growing out of the rela-
ton Of the Federal and State organization,
has not beer materially changed so far a.
the question now before us is concerned
by the revolutionary measures which re.
suited in the formation Of the Confederat,
Government. ana tie admission Of our State rs
a member of IL: and hence the adjudicatons
defining and settling the jurisdiction of the
Federal and State courts respectively, must
necessarily be- looked to as precedents in de-
tcrmining questions involving the jurisdiction
Of the Confederate and State courts.
Ferguson ~ pGrte, Q John. r., 239, il lead
ing case On the question now before Us. Fer
guson. n minor, enlisted MS a soldier in the
army Of the United States without the consent
of his father; and npOn the affidavit of his
father, an application Was made to the 81
preme Court OF New York for a writ OF haoeas
corpus to Northumberland Of the army
who held him to service under his enlistment.
Kent. Oh. y. was much inclined to the opinion
that the court had not jurisdiction to issue the
writ in the case presented; and that the appli-
cation should be made for relief 70 United
States court or Judge. The other Judges con-
Cured with him in refusing the writ on the
grounds that the complaining PARTY could oo-
tain relief from the proper United States couit
or Judge, but expressly reserved their opinion
az to the question of jurisdiction discussed M
the CnlGI JUSTICE
1The court proceeds to careful examiha-
ton of the question of the jurisdiction a Stite
courts to issue the writ in behalf Of pers'ns
held in custody by the military authorities u
the General Government This would be IN
teresting only to the profession. The amino
rites taken up and discussed are--loth 'ohh'
r. 32S. The matter Of Carlton 18th Law H.
AL: Kents Com. Vol. l, p. 4Ol; several Mass.
Reports; 7th Penn. State Reports 10y Burr,
1886; ID Virginia Cases, 276; 2lst Howard u
s. Reports, 5l3, and several others. The court
then proceeds.
We think the authority cited and commented
upon BY Us, warrant the conclusion that where
person is held Y custody hy gu o-lcgr wy I've
Coafedsrate sta.es. without process fI1m any
judicial tribuu4l w tle Confederate States. as
was Herbert, stats court ON Judge may Issue
the writ OF habens corpus enquire inta the I'm