Tarble's Case,
80 U.S. 397 (1871)

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U.S. Supreme Court

Tarble's Case, 80 U.S. 13 Wall. 397 397 (1871)

Tarble's Case

80 U.S. (13 Wall.) 397


1. The government of the United States and the government of a state are distinct and independent of each other within their respective spheres of action, although existing and exercising their powers within the same territorial limits. Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other. But whenever any conflict arises between the enactments of the two sovereignties or in the enforcement of their asserted authorities, those of the national government have supremacy until the validity of the different enactments and authorities are determined by the tribunals of the United States.

2. A state judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States by an officer of that government. If upon the application for the writ it appear that the party alleged to be illegally restrained of his liberty is held under the authority, or claim and color of the authority of the United States by an officer of that government, the writ should be refused. If this fact do not thus appear, the state judge has the right to inquire into the cause of imprisonment and ascertain by what authority the person is held within the limits of the state, and it is the duty of the marshal or other officer having the custody of the prisoner to give, by a proper return, information in this respect. But after he is fully apprised by the return that the party is held by an officer of the United States under the authority or claim and color of the authority of the United States, he can proceed no further.

3. These principles applied to a case where a habeas corpus was issued by a court commissioner of one of the counties of Wisconsin to a recruiting officer of the United States, to bring before him a person who had enlisted as a soldier in the Army of the United States and whose discharge was sought on the alleged ground that he was a minor under the age of eighteen years at the time of his enlistment, and that he enlisted without the consent of his father. The petition for the writ alleging that the prisoner had enlisted as a soldier and been mustered into the military service of the national government, and was detained by the officer as such soldier -- this Court held that the court commissioner had no jurisdiction to issue the writ for the discharge of the prisoner, as it thus appeared upon the petition that the prisoner was detained under claim and color of the authority of the United States by an officer of that government, and that if he was illegally detained, it was for the courts or judicial officers of the United States and for those courts or officers alone to grant him release.

This was a proceeding on habeas corpus for the discharge

Page 80 U. S. 398

of one Edward Tarble, held in the custody of a recruiting officer of the United States as an enlisted soldier, on the alleged ground that he was a minor, under the age of eighteen years at the time of his enlistment, and that he enlisted without the consent of his father.

The writ was issued on the 10th of August, 1869, by a court commissioner of Dane County, Wisconsin, an officer authorized by the laws of that state to issue the writ of habeas corpus upon the petition of parties imprisoned or restrained of their liberty, or of persons on their behalf. It was issued in this case upon the petition of the father of Tarble, in which he alleged that his son, who had enlisted under the name of Frank Brown, was confined and restrained of his liberty by Lieutenant Stone, of the United States army, in the City of Madison in that state and county; that the cause of his confinement and restraint was that he had, on the 20th of the preceding July, enlisted, and been mustered into the military service of the United States; that he was under the age of eighteen years at the time of such enlistment; that the same was made without the knowledge, consent, or approval of the petitioner, and was therefore, as the petitioner was advised and believed, illegal, and that the petitioner was lawfully entitled to the custody, care, and services of his son.

The writ was directed to the officer thus named, commanding him to have Tarble, together with the cause of his imprisonment and detention, before the commissioner, at the latter's office, in the City of Madison, immediately after the receipt of the writ.

The officer thereupon produced Tarble before the commissioner and made a return in writing to the writ protesting that the commissioner had no jurisdiction in the premises and stating as the authority and cause for the detention of the prisoner that he, the officer, was a first lieutenant in the Army of the United States, and by due authority was detailed as a recruiting officer at the City of Madison, in the State of Wisconsin, and as such officer had the custody and command of all soldiers recruited for the army at that city;

Page 80 U. S. 399

that on the 27th of July preceding, the prisoner, under the name of Frank Brown, was regularly enlisted as a soldier in the Army of the United States for the period of five years unless sooner discharged by proper authority; that he then duly took the oath required in such case by law and the regulations of the army, in which oath he declared that he was of the age of twenty-one years, and thereby procured his enlistment, and was on the same day duly mustered into the service of the United States; that subsequently he deserted the service, and being retaken, was then in custody and confinement under charges of desertion, awaiting trial by the proper military authorities.

To this return the petitioner filed a reply, denying, on information and belief, that the prisoner was ever duly or lawfully enlisted or mustered as a soldier into the Army of the United States or that he had declared on oath that he was of the age of twenty-one years, and alleging that the prisoner was at the time of his enlistment under the age of eighteen years, and on information and belief that he was enticed into the enlistment, which was without the knowledge, consent, or approval of the petitioner; that the only oath taken by the prisoner at the time of his enlistment was an oath of allegiance; and that the petitioner was advised and believed that the prisoner was not, and never had been, a deserter from the military service of the United States.

On the 12th of August, to which day the hearing of the petition was adjourned, the commissioner proceeded to take the testimony of different witnesses produced before him, which related principally to the enlistment of the prisoner, the declarations which he made as to his age, and the oath he took at the time, his alleged desertion, the charges against him, his actual age, and the absence of any consent to the enlistment on the part of his father.

The commissioner, after argument, held that the prisoner was illegally imprisoned and detained by Lieutenant Stone, and commanded that officer forthwith to discharge him from custody.

Afterwards, in September of the same year, that officer

Page 80 U. S. 400

applied to the supreme court of the state for a certiorari, setting forth in his application the proceedings before the commissioner and his ruling thereon. The certiorari was allowed, and in obedience to it the proceedings had before the commissioner were returned to the Supreme Court. These proceedings consisted of the petition for the writ, the return of the officer, the reply of the petitioner, and the testimony, documentary and parol, produced before the commissioner.

Upon these proceedings the case was duly argued before the supreme court, and in April, 1870, that tribunal pronounced its judgment affirming the order of the commissioner discharging the prisoner. This judgment was now before this Court for examination on writ of error prosecuted by the United States.

The opinion of the court below was sent up with the transcript of the record in the case. It went largely and elaborately into the grounds of its judgment. The sacredness of the right to personal liberty, and "the high, searching, and imperative character" of the writ of habeas corpus were presented and enforced. The right of any state court to liberate a party in custody under sentence of the federal courts when such federal court had jurisdiction was not, indeed, asserted even where the federal court might err in what it did, but contrariwise such right by any state court was disclaimed. But the right of the state courts to decide whether the federal court had jurisdiction to pass upon the subject at all was considered by the court below as perfectly within its competence to pass upon, and if on full consideration of the case the state court was satisfied that the federal court had no jurisdiction at all in the matter, in such a case the court below asserted that the duty of the state court was to disregard what the federal court had done. The court below, in illustration of its position, said:

"This court [the Supreme Court of Wisconsin], in a civil suit, recently passed on the jurisdiction of the federal court to render a decree for the sale of a railroad on the foreclosure of a mortgage. There was no suggestion from any quarter that in

Page 80 U. S. 401

doing so it was exercising any unwarrantable or unusual power or assuming any authority to control, revise, or annul the judgments of that court. Nor was it. It is a power constantly exercised by all courts. But it is precisely the same power that is exercised in a proceeding by habeas corpus when the validity of a judgment under which the party is imprisoned is drawn in question. A judgment in a civil suit disposes of the title to property. A judgment in a criminal suit disposes of the prisoner's right to liberty. A civil suit involving the title to that property is the appropriate proceeding in which the jurisdiction of the court to render the one judgment may be drawn in question collaterally. A proceeding by habeas corpus may appropriately have the same effect as to the other. But the right of the state court to decide on the validity of the judgment in the latter case is as clear as its right in the former. It rests upon the same principles and stands or falls by the same reasoning."

Primary Holding

Someone who is held by the federal government or its officers cannot be released based on a writ of habeas corpus from a state court.


Edward Tarble, a teenager, failed to get permission from his father before enlisting in the army. His father sought a writ of habeas corpus from a Wisconsin court that would order the army to release his son. The state courts found that the writ was validly issued, but the federal government responded that the state courts did not have jurisdiction over the matter and thus lacked the authority to issue the writ.



  • Stephen Johnson Field (Author)
  • Samuel Nelson
  • Nathan Clifford
  • Noah Haynes Swayne
  • Samuel Freeman Miller
  • David Davis
  • William Strong
  • Joseph P. Bradley

The Supremacy Clause of the Constitution establishes that the federal government takes precedence in any jurisdictional conflict with state or local governments. It also has plenary authority over the armed forces, and this authority as well as national security would be undermined if states could interfere with the federal government's enlistment process and order soldiers to be released. The responsibility to protect individual rights rests just as squarely on the federal government as on the states, so there is no reason to fear greater incursions on civil liberties by preventing state courts from issuing habeas corpus writs. Allowing them to provide this form of relief would result in lengthy, complicated legal proceedings that would impair the functioning of the federal government.


  • Salmon Portland Chase (Author)

State courts should have the authority to issue habeas corpus writs, although the U.S. Supreme Court should retain the authority to review whether granting a certain writ was proper.

Case Commentary

After this case was decided, its reasoning was expanded to cover writs of mandamus issued by state courts as well. Nevertheless, many state courts continued to sporadically issue these writs even after the law against them seemed to be established.

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