HABEAS CORPUS. 



487 



If this right exists, it ought to be, and will be, 

 yielded without objection by every good citizen; but 

 of its existence there should be no doubt. The 

 claim is a novel one, and interests every citizen, and 

 is of such magnitude as to demand full and careful 

 consideration. 



If the right does not exist, that should be declared, 

 and the claim abandoned. 



The simple question is, whether the State Courts 

 have concurrent jurisdiction with Federal Courts to 

 discharge, on habeas corpus, persons held in military 

 custody. The power of United States Courts so to 

 do, is expressly reserved by the order. The right 

 and propriety of discharging are not drawn in ques- 

 tion ; only it is declared that State Courts shall not 

 exercise such right. 



The question is not a new one, except in the man- 

 ner in which it now arises. The adjudications are 

 numerous in the highest Courts of the States. 



The right and duty of the State to inquire into the 

 illegal imprisonment of the citizen is among the ear- 

 liest and most eminent of its attributes. No State 

 that formed a part of the General Government ever, 

 by grant or otherwise, divested itse_lf of these. 



On the contrary, the highest tribunals of all the 

 States have asserted, from the earliest days of the for- 

 mation of the General Government, their right and 

 duty to inquire into and relieve from illegal restraint 

 its citizens within its own territorial limits, regard- 

 less of the authority, or pretext of authority, by 

 which the restraint may have been imposed. 



The acts of Congress are the supreme law of the 

 land; and yet Judge Story says : "The right of all 

 courts, State and National, to declare unconstitution- 

 al laws void, seems settled beyond the reach of judi- 

 cial controversy." 2 Story's Com., sect. 1852; 1 

 Kent, 494. 



And so as to judgments rendered by the United 

 States courts, Williamson vs. Barry, 8 Howard 540. 



Let us next examine into the authorities determin- 

 ing the right of State Courts to inquire into and re- 

 lieve from illegal restraint persons held under Uni- 

 ted States authority. The cases are numerous, and 

 are to be found in the reports of all the States. 



The case exparte Sergeant, 8 Hall's Law Journal, 

 occurred in April, 1809. Sergeant was held under 

 attachment from United States District Court. A 

 writ of habeas corpus issued to the United States Mar- 

 shal returnable before the chief justice of the State 

 of Pennsylvania, and the court, in holding that they 

 had the power to discharge the prisoner, remarked that 

 this "right flows from the nature of our Federal Con- 

 stitution, which leaves to the several States absolute 

 supremacy in all cases in which it is not ceded to 

 the United States." 



In the year 1815, the Supreme Court of New York 

 enforced, by attachment for contempt, obedience to 

 the writ of habeas corpus directed to Morgan Lewis, 

 General of Division in the Army of the United States. 



In the case of Carleton, 7 Cowen, 471, in 1827, the 

 Supreme Court of New York were unanimous in dis- 

 charging a minor who had enlisted in the United 

 States army, alleging himself at the time to be over 

 twenty-one years of age. 



In 1813, in the Lockington case, Bright, Rep. 260, 

 before the Supreme Court of Pennsylvania, this right 

 of the State Courts to issue the writ was reaffirmed. 



[The Court here cited the remarks of Chief Justice 

 Tilghman.l 



In New Jersey, in 1819, the question came before 

 the Supreme Court in the case of The State vs. 

 Brearly, 2 Southard, 555. 



Southard, J., said : It will require, in me, a great 

 struggle, both of feeling and judgment, before I shall 

 be prepared to deny the jurisdiction of the State, and 

 say that she has surrendered her independence on 

 questions like this; that her highest judicial tribunal 

 for such purposes is incapable of inquiring into the 

 imprisonment of her citizens, no matter how gross or 

 illegal it may be, provided it be by agents of the Uni- 

 ted States, and under color of their Taws." 



[The^ipinion of the court was also cited in the case 

 of The State vs. Dimmick, 12 New Hampshire, 167, 

 and the Commonwealth vs. Harrison, 11 Massachu- 

 setts, 63.] 



The question was again before the Supreme Court 

 of Pennsylvania in 1847. The Commonwealth ex rel. 

 Webster and Fox, 7 Barr, 336. 



Coulter, J., delivered the opinion of the Court, say- 

 ing: "In Pennsylvania, the jurisdiction of the State 

 judges and State Courts has not before been doubt- 

 ed ; and from the case of the Commonwealth vs. Mur- 

 ray, 4 Binn. 487, down to the present time, numer- 

 ous cases have occurred in which it has been exer- 

 cised. 



This is in accordance with the principles of the 

 common law, by the provisions of which the writ of 

 habeas corpus is the prerogative writ of the citizen 

 the safeguard of his person and the security of lib- 

 erty. No matter how or where the chains of his cap- 

 tivity have been forged. The power of the judiciary 

 of the State is adequate to crumble them to dust, if 

 an individual is deprived of his liberty, contrary to 

 the law of the land. 



This was the case of enlistment of a minor, who 

 had deserted, and he was discharged. 



Such are some of the adjudications of the highest 

 courts of the States, and more might be presented, 

 affirming the right of State Courts to try the legality 

 of imprisonment under color of authority for the 

 United States. 



The opinion of Chief Justice Kent in the Ferguson 

 case, 9 Johns, stands* almost alone ; and the excep- 

 tion to this and other opinions was participated in 

 by not one of the judges of the court who sat with 

 him in the case, and has never yet, so far as I have 

 examined, been assented to by a single State Court 

 wherever the question has been presented. But it 

 has been expressly denied and disclaimed. 



In a case reported in the Law Journal, 438, in 

 1850, in the charge of Mr. Justice Nelson to the 

 grand jury, in 1851, of the Circuit Court for the 

 Southern District of New York, and by Mr. Justice 

 McLean in Norris vs. Newton, 5 McLean, 92, the right 

 was denied. 



And yet Hurd, in summing a review of the action 

 of the various courts, says : "In some of the inferior 

 courts of the United States the power has been de- 

 nied ; but in most of them, when the question has 

 arisen, the power to issue the writ has been conceded ; 

 but the jurisdiction under it has been claimed by 

 them to be more circumscribed than the State Courts 

 have held it to be. 



It 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. Hurd on Ha- 

 beas corpus, 166. 



Now, at the formation of the General Government, 

 this right remained, unless surrendered by the State, 

 or unless " Congress has the power to, and has exer- 

 cised it, to take it away." It existed inherently, and 

 not by grant from Congress. There may be, and 

 are, cases flowing from the relations and duties of 

 the citizen toward the General Government, where 

 the action of the State Court may be controlled. 



The acts of Congress may impose additional duties, 

 new obligations may be contracted, and new rela- 

 tions formed by the citizens. 



So far as these are in conformity with the grants 

 of power as written in the Constitution, they are, of 

 course, valid and binding upon the citizens of the 

 States. Whether they are so or not is the unques- 

 tioned right of every State Court to determine in a 

 proper case. So likewise is it the right of the State to 

 inquire whether its citizens are properly restrained 

 by virtue of those laws, whose validity it has the 

 right to pass upon and determine. 



It is the right, then, to inquire whether the deten- 

 tion be lawful or not. And the detention may be 

 lawful under and by virtue of laws National, State, or 

 Municipal, or by treaties with Foreign Governments. 

 If the detention be legal the right is exhausted, the 



