Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-07-15
GU Stanbarb,
THE HABEAS CORPUS.


THE HABEAS CORPUS.
In the Supreme Court Of North Carolina, jun
Term, 1868.
IN THE MATTER OF BRYAN
Governor Vance having informed the Judges thai
the Secretary of War puts his objection to the re
lease of citizens who have been arrested as con
scripts by the officers of the Confederate States after
they had been discharged by the State tribunals
writs of ha6eas corpus, upon the ground thai
the courts of the State had no jurisdiction
over the subject, the Court directed the ques'
tioa to be argued as preliminary to the disposition
Of the many applications before it BY wrts of ha,
the Court I addresseda communication to His Ex-
celleucy the President of the Confederate States,
informing him of the fact and that the Court would
be pleased to hear an argument by the Attorney
General of the Confederate States or any other gen.
teman of the bar he might appoint for the purpose.
The question has been fully argued by Mr.. Moore
and Mr. Winston in support of the Jurisdiction and
by lIr. Strong, District Attorney Of the Confede-
rate States, with whom was associated Mr.. Bragg
against the jurisdiction.
We have devoted to the subject that temperate
and mature elaboration which its great importance
called for and the Court is opinion that it has ju
risdiction and is bound to exercise it. and to dis
charge the citizen whenever it appears that he IS
unawfuly restrained of his liberty by an officer Of
the Confederate States If the restraint is lawful,
the Court dismisses the application and remands
the party. Ii on the other hand, the restraint is
unlawful, the Court discharges him. The lawful'
ness or uawfulness of the restraint necessarily in
wolves the construction of the act of Congress under
which the officer justifes the arrest and the naked
question is, by whom is the act of Congress to be
construed by the Secretary of War and the sub
ordinate officers he appoints in order to carry the
conscription acts into effect or by the Judiciary
Or if the LATTER have the State Courts jurisdiction
over the subjectP This, as was well remarked by
Mr.. Strong, is dry question Of Constitutional law,
and its decision would not be influenced by colate-
raj disturbing causes.
The jurisdiction of the State Courts over the SUBJ
ect is settled in this State and has been consid
cred as far back as the traditions of the bar carry
US. In 1915. Judge Taylor reported in ID N. Car
DINA Law Reply, 81, Lewis case, decided by the
Supreme court of Massachusetts, in. which the
Court, upon hG6eas corpus to an officer of the
United States, took jurisdiction and discharged
soldier on the ground that the enlistment was not
valid by tho proper construction of the act of Con.
greSs. That decision was concurred III by the bench
and the br in this State, and the jurisdiction has
ever since been exercised by our Courts and Judges
and treated as settled until the present term Of the
Court. In Masons case, the jurisdiction was exer
ciscd and soldier of the United States was dis
charged 10y the Court. 1st Murphy 1885, 1907
See also N. Carolina Law Repos'y, note. We have
traditions Of other cases tried by single Judges but
no reports we're made of them. About 1347, while
on the Sup ,rior Court bench, exercised the jurs-
dction AMI soldier was brought before me at
Smthville, on writ directed to the officer in com.
nand at Fort Caswell-Capt Chllds, who after
wards so highly distinguished himself in Mexico
In the ma.:er of Mills, who claimed exemption as
shoemaker during the past winter, in my letter to
Judge Battle and Judge Manly, asking their opin-
ion as to the construction of the CONSUMPTION and
exemption acts, all three of US took it for granted
that the question Of jurisdiction was settled and in
the opinion filed by in that and all of the other
cases which have been before me, set forth that
the power of the State Judges to put construction
upon acts Of Congress SO far as they involve the
rights of the citizen (as distinguished from mere
military re 5ulations) is settled and all of the other
Judges in this State who have issued writs of ha-
h'ns cornus have SO treated it-(Judges Battle,
French, Heath and Shipp) :.
rhs question has been considered as settled in the
other States and their Courts have in many cases.
assumed and exercised the jurisdiction, and it has
been conce led by the Courts of the United States.
Chancellor Kent, LIST vol, 400 says: 1.-THE ques-
ten was therefore settled in favor of concurrent
Jurisdiction in that case and there has been decis-
ION and practice by the Courts of other States."-
In the note many cases are referred to. Hurd, in
his treatise on habeas corpus under title "uncur-
rent jurisdiction" refers to and collates great
many cases which fully support his conclusion -
1t may be considered settled that State courts may
grant the writ in all cases of illegal confinement un.
der the authority of the United States" So if any
question can be settled by authority, the concur
rent jurisdiction of the State Courts must be trea-
ted as SETTLED 1t must be presumed that this long
series of cases which establish the concurrent uris
dction of the State Courts and their power to put
q construction on acts of Congress when necessary
to the decision Of case before them, is supported
by the most clear and satisfactory reasoning and it
would be lille to attempt to add any thing to what
has been said by the macy able Judges who have
discussed tie question will content myself by
making f,w extracts from some of the opinions.
Tlghman, Chief Justice, in Lockingtoh's case,
Brightly Reports 269, lin 1879 says: I" 1t is to be
observed that the authority Of the State Judges in
cases of Aa5eas corpus emanates from the several
States, and not from the United States: In order
to destroy their Jurisdiction therefore, it is neces-
sary to show not that the United States have given
them juris LECTION, but that Congress possesses and
have exercised the power of taking away that iuris
diction which the States have vested in their own
Judges" Southland, j., In State vs. Breary, South
555, QS19, says: ." 1t will require in me great
struggle, both Of feeling and judgment, before
shall be prepared to deny the jurisdiction of the
State and ay that she has surrendered he. indie
pendence on questions like this and that her high.
est judicial tribunal for such purposes is incapable
ofinquirius into the Imprisonment of her.citizens,
matter now gross or illegal it may be, provided
it be by the agents of the United States and under
color Of their laws. Have we lost the urisdic-
ton because we cannot construe and determine the
extent and operations of acts of Congress? We are
often compelled to construe them; they are our
supreme law when made in conformity with the
Constitution. Is it because the United States is
party How does she become q party on such a
question Is she party for the purpose of des.
potism, ~d6snever a man who holds commission
from her shall, without legal authority or in viola
ton of herown Statutes inure, imprison or Cypress
thecitizen? Surely not" In Slocum vs. Maybeerry,
ID Wheaton, page 4, Qs17,) 'Slocum was Surveyor
for the port of Newport in Rhode Island and under
the directions of the collector had seized the I've
NUS" lying in that port with a cargo ostensibly
bound To aoma other mort in the limited Statas -