The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1867-10-07

TO an executive officer who has undsr his control
an enlisted person. Nor can II DO argued from
the language Of this opinion, In which rcferene
is meds to persod Other than tho marshal nav.
ing custody Of the prisoner, that II was intended
, 70 apply 70 such q person as m officer having
control Of an enlisted person. Booth was, In
fsot held In imprisonment under process from the
United States Court, by person other than the
marshal, for he had been transferred BY the
marshal, under law Of Congress, to . jail Of
the State Of Wisconsin, and was In the imme.
date custody Of the keeper Of the jail. And II
10 reference TO that condition Of imprisonment
that the expression othsr than ths piavshai 10 10
be understood.
lhe construction have applied to the Ian.
susge used By the Supreme Court, combining the
right TO refuse production Of the body TO the case
Of prisoner b under judicial process Of the
United States Is further fortified BY authority In
England and tho Unit,d States. The English
courts have admitted as ono exception TO the
duty Of producing the body on habeas corpus
return that the party was imprisoned for treason
or felony plainly expressed, or was ''oonvict or
In execution By legal process" This sxeep.
tion was admitted under an implication arising
upon q clause Of the fret section Of the act Of
81 Cur I, (Hurd on Hsbsss Corpus, p. 254.)
Mr.. Hurd adds: "This, however, is not only an
exception TO the general rule, but should be 70.
garded as Q particular indulgence, for III the
onicer had right TO stand upon his construction
Of the warrant Of commitment, there would have
been but little gained by tho act Of 81 Cur l."
Nor can I understand the language Of the
court In Ableman vs.. Booth in reference to the
exclusive Jurisdiction of the United States a.
applicable to any other Jurisdiction over persons
restrained Of their liberty than that which de-
Ponds upon jurisdiction acquired under process
Of the courts ofthe United States. Undoubtedly
aormlsy L. detained as an enlisted psrson under
the laws Of the United States, but as yet he has
not been brought within the exclusive jurisdic-
there any act Of Congress which declares that
Jurisdiction over his person and his dstsntion
shall only be exercised BY the Federal judiciary.
80, too, while II 10 clear that the proper courts
Of the United States may entertain Jurisdiction
In habeds eorpus Of persons enlisted In the navy;
yet that capacity TO tako Jurisdiction docs MOI,
before Its actual exercise, Dust the Jurisdiction
Of State court The grant Of judicial power TO
the Federal courts In all cases Of law and equity
arising under the Constitution and laws Of the
United States, does not necessarily divest the
Jurisdiction Of State courts 10 the same cases.
There 10 vast field Of concurrent jurisdiction
remaining In the State courts which Congress
has not hitherto brought within the exclusive
oogniSanoe Of the Federal judiciary.
There 10, then, no act Of Congress- and no
decision Of the Supreme Court Of the United
States which, in the matter Of habeas corpus, e.
eludes State court from the exercise Of its own
proper Jurisdiction to entertain tho case and TO
require proper return, and the production Of
the body Of person detained by an officer Of tho
navy IS an enlisted person.
an, accordingly Of tho opinion that the
court In this case had authority TO issue tho writ
and to compel q return, and the production Of
the body; and that instructions should be sent to
Com. Selfridge to answer the rule for an attach
msnt and To produce the body Of Gormley be-
fore the court; and that the Instructions here
tofors sent him to mako resistance by force
should DO revoked.
do not deem It proper at this time, and upon
the question referred to me, to 60 into any fur
Their questions which may arise before tho State
court after the production Of the body. But
do not doubt that aftor tho jurisdiction Of the
court has boon vindicatsd BY obedience to Its
writ proper decision will be had upon the ques-
tion Of discharge. II II should happen that tho
court order discharge, and upon examination
1t should DO deemed eIpsdisnt to carry tho quss.
tion to the Supreme Court Of the United States
for final decision, It will then DO proper to In.
quire BY what mode Of proceeding that purpose
can DO accomplished.
In conformity with tho foregoing opinion the
Secretary Of the Navy revoked his former order,
and instructed Commodore Selfridge to produce
Gormlsy before tho court.