488 



HABEAS COKPDS. 



writ has served its purpose, and the applicant will 

 be left in the jurisdiction where found j if illegal, he 

 would be discharged, because there is no law for 

 holding him. 



The State cannot abandon the right, cannot aban- 

 don the citizen when in the custody, it may be, of 

 some usurper of power, under color or claim of law. 

 This would be disgrace, dishonor, faithlessness to 

 the citizen whose support and service it commands. 



In the cases at bar there is no contest between a 

 State Court and a United States Court, or any other 

 court. These parties, Hicks and Archibald, arc not 

 in the custody of any court or its officers, by virtue 

 of any process or commitment; have never been 

 tried, convicted, or sentenced. They are in the cus- 

 tody of Lieutenant-Colonel Boone, who is simply the 

 keeper of the barracks ; they are in the jurisdiction 

 of no court civil, criminal, military, State, or Na- 

 tional in existence. 



Lieutenant-Colonel Boone holds them by virtue of 

 no writ or process from any court or authority ; they 

 were arrested without any process, and without any 

 proof or showing that they owe service to the Uni- 

 ted States. 



Lieutenant-Colonel Boone is merely the custodian, 

 and over him the United States have not exclusive 

 jurisdiction. 



It was claimed in the argument, that, upon the 

 familiar principle that where the jurisdiction is con- 

 current, the court first acquiring must proceed, and 

 the other is rested that the court-martial has the 

 right to retain the custody, and proceed. There is 

 no proof that the parties are in the jurisdiction of any 

 court-martial there is no showing of the existence 

 of any such court but a suggestion that such an one 

 is or will be created, in some distant State not named, 

 at some time in the future not mentioned. 



The parties are not charged with having violated 

 a criminal law of the United States, of which any civil 

 court, State or United States, could try and punish 

 them. 



It is admitted that the writ of habeas corpus may be 

 issued by the State Court, but that the court shall 

 not exercise the power and authority implied and 

 conferred by the right to issue it. The rule is that 

 when authority is given to do a thing, all the power 

 necessary is conferred. 



But that which in these proceedings strikes me as 

 startling and ill-boding is, that the military, under 

 color and pretence of law, should claim the right 

 and proceed to its exercise, to proclaim and order 

 the limits within which the civil authorities shall be 

 exercised, and beyond which it shall not go, without 

 being met and overcome by force. Power is corrupt- 

 ing, and in these days when vast powers are concen- 

 trated and wielded, we must closely watch the pro- 

 gress of events. 



The Constitutions of the United States and of the 

 State of Ohio declare that "the military shall always 

 be subordinate to the civil authority." 



And yet, in these peaceful and loyal States, whose 

 people have given so freely of their aid to the Gov- 

 ernment, the claim is now made of the right to mod- 

 ify and nullify the Constitutions and laws of them all 

 to modify and nullify the powers of every State 

 Court to modify and nullify the rights and immuni- 

 ties of every citizen of those States. 



And in the argument it was claimed by the Judge 

 Advocate that military officers could not obey the 

 process of courts, because in so doing they might 

 disobey their superiors in command. 



And further, that a court that should proceed to 

 enforce obedience to its writ of habeas corpus, in a 

 case like the present, would be guilty of nullification, 

 secession, and rebellion. 



According to these doctrines, a military officer 

 might violate every article of the criminal code, from 

 murder down, ana although the Constitution of the 

 State says that "the military shall always be subordi- 

 nate to the civil authority, the offender shall walk 

 abroad untouched and unharmed. 



It is an assertion that the military is high over all, 

 and above all, and that the civil authority of the land 

 and the people shall be subordinated and subjected 

 an assertion by those, too, who, coming from obscur- 

 ity, will, when these troublous days are passed, sink 

 to that obscurity again, away from that people they 

 scorned and wronged but will then fear. 



The motion for an attachment against Lieutenant- 

 Colonel Boone would be allowed. 



Judge Flynn asked what the Court proposed to do 

 in relation tp Gen. Burnside, who was made a party. 



Court remarked that on consideration it did not 

 appear essential that he should be made a party. 

 It was Colonel Boone who had the parties in custody, 

 and had to elect whether he would obey this court 

 or his superior officers. Gen. Burnside gave no spe- 

 cial order in this case, but a general order, which had 

 no reference to the action ofthis court especially. 



Major B. M. Corwin asked that the entry might 

 be deferred, as he desired to examine the answer of 

 Colonel Boone before preparing an exception to the 

 decision. 



Major C. has resigned his position in the artnv, and 

 was present now only at the request of the Judge 

 Advocate, and by invitation of the Court. 



The following is Gen. Burnside's return to 

 the writ in the above case : 



HEADQTTABTERS DEPABTMENT or THE Omo, \ 

 CINCINNATI, August 5, 1868. 



I know of no such person as Henry Hicks, and he 

 is certainly not in my custody, as 1 do not take charge 

 of the imprisonment of any person. 



If, as indicated by the sheriff, this man is a minor, 

 and enlisted in the service against the consent of his 

 parents, and the case is one which justly and honor- 

 ably calls for a discharge, by making the fact known 

 to these headquarters, the discharge will be at once 

 granted without the expense of a lawsuit, or the 

 chance of clashing between the State and United 

 States authorities, which all just and loyal men 

 should seek to avoid at a time like the present. 

 . My instructions are distinct, to deliver up no pris- 

 oners upon writs issued from the State Courts, where 

 they are held by authority of the General Govern- 

 ment. These instructions are based upon a well- 

 known decision of the Supreme Court of the United 

 States, and I have issued an order embracing the 

 leading features of that decision. 



In conclusion, I beg leave to state to the honorable 

 Court that it is far from my desire to come into col- 

 lision with its authority, or to disregard any of its 

 decrees ; and I hope to be always found willing and 

 anxious to obey any of its orders that are not in op- 

 position to my instructions from the General Gov- 

 ernment ; and I feel sure that the honorable Court 

 has no disposition to give any such orders. 



All which is respectfully submitted. 



(Signed) A. E. BURNSIDE, 



Maj.-Gen. Com'g Department of the Ohio. 



The result of this opinion was fully sus- 

 tained by Judge Mullin of the 6th district of 

 the Supreme Court of New York. In the case 

 of an "infant" in whose behalf a writ had 

 been sued out, Provost Marshal Eastman of the 

 Jefferson and Lewis district made the return 

 prescribed by the War Department and stood 

 upon it, refusing to produce the prisoner. The 

 latter's counsel moved for a writ of attachment 

 for the arrest of the marshal. Judge Mullin in- 

 stantly granted and ordered the sheriff to exe- 

 cute it. The sheriff soon appeared with the 

 marshal in custody. Judge Mullin took the 

 same course in a case at Watertown, N. Y., 

 putting the provost marshal in the custody of 

 the sheriff on an attachment. 



But in a case before Judge Bacon of the 





