Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1863-08-31
INC ua,en. Corpu. case.

AZ LnC III VI " oRAa"NVDA1HNA0A
for habeas corpus before Judge Perkins August
"a, 1863.
The petition of William W. Gold for a writ of
habeas corpus for release from restraint of his son,
George W. Gold, IS presented to be by his attor-
neys. r. d. and R. L. Walpole, Esqs. Said Viii
liam is alleged to be held as an enlisted soldier
in the United States service, while he is under
eighteen years OF age.
The first question is whether l have jurisdic-
ton 10 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 I have
not Jurisdiction, as | shall. in that event, be re
lieyed OF much unpleasant gratuiious labor.
The question ia, can a State court or Judge de.
liver a person from illegal restraint or imprison
ment. who is thus held by an officer Of the United
States. but without any judicial process: | shall
hastily commit my conclusion on this question,
and the grounds on which / rest it, to writing.
1t is admitted that where a person is held by
the proper United States officer, under legal ju-
dicial process, he can not be taken from such
officer BY State process. As property in custody
under judicial process from a State or United
States court can not be taken by virtue of process
from any other court; so a person in custody un-
der judicial process from a State court can not be
taken by such process from the Federal courts,
and pice uersa. In er parte dOrr 3 How. U.
5. Rep, 1903, Judge Mclean says: Neither
this nor any other court of the United States, or
Judge thereof, can issue a habeas corpus to
bring up a prisoner who is in custody under n
sentence or execution of a State court for any
other purpose than to be used MS a witness. Ii is
immaterial whether the Imprisonment be under
civil or criminal process" so in Ableman, v.
Booth. 81. How U. s Rep SOC. where a per
son was in custody upon process duly issued,
upon an affidavit, by an United States Commits
%sioner. he being a judicial officer. it vas held that
he could not be taken from the custody of the
United States Marshal by process from a State
court. This is the point decided in the case. be-
cause such were the facts upon which the de
cision was made. See Perk. pr, p. AIS, See 2
Story on the Const see. LIST. 1t has been
sought to extend the operation of this Ableman
case beyond its facts. tits claimed that a person
in the custody of an officer of the United States,
even without judicial process, is in the custody of
the Government of the United States, and beyond
relief by n State court.
1t is contended that If United States Marshal
should, of hs own %vOliti0n, without any process,
seize and imprison a negro. or any other person,
aud claim to hold him as a fugitive slave, the
Marshal would not, according TO the case of
Ableman VS.. Booth. be liable to answ er a State
writ of habeas corpus for the release of the
arrested person. This is Il new Interpretation of
that case, and can not, we think, as a general
proposition. be correct.
The great leading fact in these cases should
never be forgotten, that our citizens all the time
live territoriaily, within two governments, viz !:
the State and Federal; and that the former pos
sesses all power over the citizen not granted to
the latter; and. further, that neither the Consti-
tuition of the United States nor any act of Con-
gress give, TO the Federal courts. in terms, ex-
elusive jurisdiction in such cases as have been
nentiOned; and Judge Nelson, of the United
States Supreme Court. in 1851, seems 10 rule
that a holding under the authority of the United
States, to exclude the jurisdiction of the State
courts, must be a holding under legal process.
He saws: 'In such a case, that is, when the pris-
oner is in fact held under process issued from a
Federal tribunal" &c So. Judge Mclean. in
Morris VS.. Newton. 5 Mclean, 80 Hurd on
Hibeas Corpus, in fra Take practical illustra-
ton of the doctrine conteuded for. Suppose the
President Of the United States should issue to
the United States Marshal for Indiana an order
as follows:
SIR: The Rev. A. W., of indianapolis. does
not preach the true gospel; the Governor of the
State is guilty Of undignifed conduct; the Judge
of the Marion Circuit Court has decided IA case
enormously; Mr.. G B., merchant. charges his
customers too high for goods; YOU will, therefore,
arrest those men and place them in confinement
till further orders Would the State courts be
powerless to afford relief? Suppose the above
order addressed to the Postmaster. and that he
had made the arrests; being a United States Off
Ger. would the Safe courts be deprived of iuris-
dictioni Now where military officers make arrests,
without judicial writs, claiming that the persons
arrested are soldiers. it has been the usage for
Safe Courts. in nearly, if not in every State in
the Union. to take jurisdiction and grant dis
chars e. upon habeas corpus. But see Spangler's
case..2 Am. L. Reg. N s.. p. 59S. Judge Hoff
man, of New York. so late as 1861. in Dodd's
case, 9 Am. L. Reg. Is, says: Whatever
doubts Chief Justice Kent and Justice Story Ell
tertained of the right of State Courts and State
Judges to hold jurisdiction of the matter, see |
Mason. Sc: 9 John. Rep. 276, our Supreme Court
explicitly and fully recognized the power and The
duty of the State Judges to give a detained party,
enlisted under the laws of the United States. the
benefit of a habeas corpus. In the matter of
Carlton, 7 Cowen, All (l627) the Court declares
that the enlistment of a minor, without consent
of his parent or guardian, was void under the act
of Congress, and that he might be discharged 10y
State authority. This doctrine has been acted
upon by Judges of this State from that time To
the present" See also, Disinger's case. - Ohio
ST. Rep. 256; Wantlan VS. White, Is Ind. 470
Ought not the officer. in all cases, to show to the
STATE Court the authority by which he detains in
custody. that the Court may judge whether it is
legal or not on its facet And may not the Suite
Court then pass upon this question?
The Supreme Court OF New Hampshire has
said: "If the laws of the United States justify
the detention of the applicant. there is moth
ing Illegal. If they do not. it is nota case arising
under the laws of the United States. although it
may be under color or preIenSe of authority by vr
tue oflhose laws. But mere pretense of authori.
~ under the laws OF the United States is
40 better than any other p~retense. 1t neither
%confers an exclusive jurisdiction on the courts of
the United States, nor Gusts the ordinary inrisdIc
ton of the courts of this State. Nor can it III Ike
any difference that the illegal Imprisonment, ii
these be one, is nv an officer of the United States
Army. The courts Of the UnItei States have no
exclusive jurisdiction over their officers" citing
ii Massachusetts Reports. pm. 6] and 81; the
State =. Dimick, ~ N. II Req 1877: see, also
Norris v Newton. 5 Mclean. 81; Disinger's case,
IL Ohio Site Rep, p 256. and Hurd on h.beas
corpus, p 1872. ct seq where the earlier cases in
the several States OF the Union are collected.
1t NAV he observed that while the judges of
the Unitei States courts ARE worthy of the utmost
confidence, still The establishment OF the doctrine
of. their exclusive Jurisdiction in The cases of
habeis corpus mentioned would be cause for deep
regref i~nasmueh as, on account of the iewness in
number and remoteness OF locality Of those
Judges Justice would thereby be removed far
away from almost every mans door, and would
be obtained. rarely at all. and when it was. only
at great expense and delay. Practically the
doctrine would favor arbitrary power against The
liberty of the citizen.
As. then, I find no decision of the Supreme
Court OF the United States DENYING the jurisdic-
ton Of the State courts in these cases, but / do
find the jurisdiction sustained by the Supreme
Courts of the several States OF the Union. almost
without exception; aud. as a denial of the juris
dictioa would be To the prejudice Of the rights and
liberties of the citizens of the State. / think it
my duty to assume the jurisdiction and issue the
writ till the Supreme Court of the United States
shall settle the law differently