The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1867-09-13

10 the prncuCe OF TIC I've H Oooto, ""S"'
| il would seem, has not been uniform the
later cases, however, following the practice
Of the Massachusetts, courts.
These cases were, however, oil decided
before the decision Of the case OF Ableman
VS.. Booth. 81, tiowards Rep. sos,
| In this cass which was decided IN the
Supreme Court of the United States, the
right orthe State Judges to grant wrlts, or
proceed in the investigation utter granted
in certain cases, was drawn in question:,
In the case there under consideration, The
party was held in custody on final process
Of United States court having jurisdiction
Of the person and subject matter. Booth
had been indicted, tried and convicted IN
the District Court Of the United states, I'M
der statute Of the United States, for and
ing and abetting the escape OF fngitiVe
slave from a United States officer having
him in custody, under a warrant issued by
District Judge of the United States At
ter his conviction hc had l'een sentenced.
The Supreme Court OF the State Of Wis.
consin granted writ Of habens corpus and
brouplt him before them and discharged
him from Imprisonment, because they nc
garded tho fugitive slave law unconstitu'
tional. p"
In the case of Alderman vs.. Booth, Judge
Taney,in delivering the opinion, fthe court
says. tive do not question the authority OF
State Courts or Judges who are authorized
iy the laws of the State to issue the writ oil
habcas corpus, to issue II in any case where
the party is imprisoned within It's terrific.
rial limits, provided il does not appear when
the application is made that the person i'm.
prisoned is In custody under the authority 81
| the United States" 'But after the return Is
made. and the State Judge or Court is ju.
dicialiy apprized thu, tho party is in custo.
dy under tho authority Of the United SAFES,
they can proceed no further" ~
Precisely what is here meant by the nu'
thoriiy of the United States Is not quite
clear in its application to every case which
may arise. In the case then under cOnsid-
eration, its application Is by no means
doubtful. If more is meant than, under
tho authority Of the United States legally
exercised, it would be difficult to reconcile
II with the provisions Of our statute. Ifnot,
IL is in harmony with them. 30"
BY tho laws Of this State, Il Is The unlaw'
ful deprivation Of personal liberty which
entities the party to the writ. Wherever that
exists, the party is "of right" entitled TO
II. ... '.I''
The "authoriiy Of the United States"
should not he COMPOUNDED with the claim of
United States officer. ,.......
Il Is conceded In the opinion that the
State Judges may issue the writ upon prop.
or application showing an illegal restraint
and inquire in this mode of proceeding, by
what authority, and for what cause any par
~ is imprisoned or restrained OF his per.
sonal liberty within the territorial limits Of
the State sovereignty. Here too wo mus
distinguish between poiper and Authority"
Now can il be said person is held by tho
"authority" of the United States, unless he
is held by virtue Of some lao Of the United
States? think not The .authority" of
tho United States is an authority emanating
from law. 1t is, more correctly speaking.
the authority Of the law Of the United
States. The United States have no other
authority than the laws Of the Federal
Government. These may he derived from
the Constitution or from federal statutes,
and think fair construction of the prop
osition il, that when il appears the party is
in custody under the authority of the laws Of
the United States, the State Judges or Court
should proceed no farther.
Thus understood, do not regard the
proposition as in conflict with our statute.
The next question presented is how must
"this appear? How shall the State Judge
DO "judicially apprizcd" Of the fact, and
how shall he determine whether tho purity
is or not under ''illegul restraint?
These arc questions that arise either be.
fore or after the issuing Of tho writ, AMI
like all other judicial issues they must bo
determined and settled upon evidence al.
duccd relative to them.
i. When party is held by process 10.
gally issued from the courts Of tho United
States having jurisdiction over the subject
matter, no is cOuclusivcly presumed to he
held by the authority Of the United States.
II Is then one of the excepted cases, and he
il not entitled to the writ as matter Of
right, and being held by process Of its
courts in due and legal form, he is not with
i'm the meaning Of our statute unlawfulIy
deprived of his personal liberty.
9. Where party is held by an officer
Of the United States, upon u preceding not
cIncnatng from any Of its judicial tribunals,
there Is no such conclusive presumption ut
tending il M follows the judicial proceed
ing, and until il appears 10y some satsfncto-
nv evidence that tho requirements Of the
law upon which the claim is based has been
complied with, it does not appear that the
party is held by the authority Of the United
Suites, or in other worls, by tho authority
OF the laws of the United States. r...
q. -. al. al. I,<I.
c!aims to do so by virtue Of como law of
the United States no must show that he
does so hold him, by satisfactory evidence.
ANY us,,rper of the liberties of tho citizen,
might make such claim, and if the court
welded to his claim tho sufferer would DO
rrmedilcss. Il is not Ills claim which gives
the Federal Courts jurisdiction and Gusts
the State court, il is the fact ir il exists that
he is held by virtue OF some law Of the
United States.
3. When upon tho return OF the writ, II
does appear in either of these modes that
the party is held by tho authority Of tho
United Siates, the State judge or State court
should proceed no farther, and should leave
the question Of the validity Of those laws
and Tho amenability Of tho party to them,
to lie determined by those tribunals consti.
tuiionally created to decide them.
4. When Il appears by the applications
for The writ, that The party Is held by virtue
Of precepi duly issued by n court Of United
States having jurisdiction Of tho subject
matter, the writ should not be granted,
And when Il appears by the application,
that the party Is held by a proceeding not
Issuing from judicial tribunal. but in con-
formiiy to the requirements of tho law upon
which It is based, the writ should not bc
gIanted. because in both cases II does not
ap,,ear that the pary is illegally restrained.
The party in this case il not held by ju.
dicial process, but it is claimed he is held
under the authority Of the United States,
and to sustain this the enlistment papers Of
the recruit arc Introduced.