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."
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
The important question is presented by this case whether
Page 80 U. S. 402
a state court commissioner has jurisdiction, upon habeas corpus,
to inquire into the validity of the enlistment of soldiers into the
military service of the United States and to discharge them from
such service when in his judgment their enlistment has not been
made in conformity with the laws of the United States. The question
presented may be more generally stated thus: whether any judicial
officer of a state has 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. For it is evident, if such jurisdiction may be
exercised by any judicial officer of a state, it may be exercised
by the court commissioner within the county for which he is
appointed, and if it may be exercised with reference to soldiers
detained in the military service of the United States whose
enlistment is alleged to have been illegally made, it may be
exercised with reference to persons employed in any other
department of the public service when their illegal detention is
asserted. It may be exercised in all cases where parties are held
under the authority of the United States, whenever the invalidity
of the exercise of that authority is affirmed. The jurisdiction, if
it exist at all, can only be limited in its application by the
legislative power of the state. It may even reach to parties
imprisoned under sentence of the national courts, after regular
indictment, trial, and conviction, for offenses against the laws of
the United States. As we read the opinion of the Supreme Court of
Wisconsin in this case, this is the claim of authority asserted by
that tribunal for itself and for the judicial officers of that
state. It does indeed disclaim any right of either to interfere
with parties in custody, under judicial sentence, when the national
court pronouncing sentence had jurisdiction to try and punish the
offenders, but it asserts at the same time, for itself and for each
of those officers, the right to determine upon habeas corpus in all
cases whether that court ever had such jurisdiction. In the case of
Booth, which subsequently came before this Court,
Page 80 U. S. 403
it not only sustained the action of one of its justices in
discharging a prisoner held in custody by a marshal of the United
States under a warrant of commitment for an offense against the
laws of the United States issued by a commissioner of the United
States, but it discharged the same prisoner when subsequently
confined under sentence of the district court of the United States
for the same offense, after indictment, trial, and conviction, on
the ground that in its judgment the act of Congress creating the
offense was unconstitutional, and in order that its decision in
that respect should be final and conclusive, directed its clerk to
refuse obedience to the writ of error issued by this Court, under
the act of Congress, to being up the decision for review.
It is evident, as said by this Court when the case of Booth was
finally brought before it, if the power asserted by that state
court existed, no offense against the laws of the United States
could be punished by their own tribunals without the permission and
according to the judgment of the courts of the state in which the
parties happen to be imprisoned; that if that power existed in that
state court, it belonged equally to every other state court in the
Union where a prisoner was within its territorial limits; and, as
the different state courts could not always agree, it would often
happen that an act, which was admitted to be an offense and justly
punishable in one state, would be regarded as innocent and even
praiseworthy in another, and no one could suppose that a
government, which had hitherto lasted for seventy years,
"enforcing its laws by its own tribunals and preserving the
union of the states could have lasted a single year, or fulfilled
the trusts committed to it, if offenses against its laws could not
have been punished without the consent of the state in which the
culprit was found."
The decision of this Court in the two cases which grew out of
the arrest of Booth, that of
Ableman v. Booth and that of
United States v. Booth, [
Footnote 1] disposes alike of the claim of
Page 80 U. S. 404
jurisdiction by a state court or by a state judge to interfere
with the authority of the United States, whether that authority be
exercised by a federal officer or be exercised by a federal
tribunal. In the first of these cases, Booth had been arrested and
committed to the custody of a marshal of the United States by a
commissioner appointed by the district court of the United States
upon a charge of having aided and abetted the escape of a fugitive
slave. Whilst thus in custody, a justice of the Supreme Court of
Wisconsin issued a writ of habeas corpus directed to the marshal,
requiring him to produce the body of Booth with the cause of his
imprisonment. The marshal made a return stating that he held the
prisoner upon the warrant of the commissioner, a copy of which he
annexed to and returned with the writ. To this return Booth
demurred as insufficient in law to justify his detention, and, upon
the hearing which followed, the justice held his detention illegal,
and ordered his discharge. The marshal thereupon applied for and
obtained a certiorari and had the proceedings removed to the
supreme court of the state, where, after argument, the order of the
justice discharging the prisoner from custody was affirmed. The
decision proceeded upon the ground that the act of Congress
respecting fugitive slaves was unconstitutional and void.
In the second case, Booth had been indicted for the offense with
which he was charged before the commissioner, and from which the
state judge had discharged him, and had been tried and convicted in
the District Court of the United States for the District of
Wisconsin, and been sentenced to pay a fine of $1,000 and to be
imprisoned for one month. Whilst in imprisonment in execution of
this sentence, application was made by Booth to the supreme court
of the state for a writ of habeas corpus, alleging in his
application that his imprisonment was illegal by reason of the
unconstitutionality of the fugitive slave law, and that the
district court had no jurisdiction to try or punish him for the
matter charged against him. The court granted the application and
issued the writ, to which the sheriff, to whom the prisoner had
been committed by the marshal, returned that he
Page 80 U. S. 405
held the prisoner by virtue of the proceedings and sentence of
the district court, a copy of which was annexed to his return. Upon
demurrer to this return, the court adjudged the imprisonment of
Booth to be illegal and ordered him to be discharged from custody,
and he was accordingly set at liberty.
For a review in this Court of the judgments in both of these
cases, writs of error were prosecuted. No return, however, was made
to the writs, the clerk of the Supreme Court of Wisconsin having
been directed by that court to refuse obedience to them; but copies
of the records were filed by the Attorney General, and it was
ordered by this Court that they should be received with the same
effect and legal operation as if returned by the clerk. The cases
were afterwards heard and considered together, and the decision of
both was announced in the same opinion. In that opinion, the Chief
Justice details the facts of the two cases at length and comments
upon the character of the jurisdiction asserted by the state judge
and the state court; by the state judge to supervise and annul the
proceedings of a commissioner of the United States, and to
discharge a prisoner committed by him for an offense against the
laws of the United States; and by the state court to supervise and
annul the proceedings and judgment of a district court of the
United States, and to discharge a prisoner who had been indicted,
tried, and found guilty of an offense against the laws of the
United States and sentenced to imprisonment by that court.
And in answer to this assumption of judicial power by the judges
and by the Supreme Court of Wisconsin thus made, the Chief Justice
said as follows: if they
"possess the jurisdiction they claim, they must derive it either
from the United States or the state. It certainly has not been
conferred on them by the United States, and it is equally clear it
was not in the power of the state to confer it, even if it had
attempted to do so, for no state can authorize one of its judges or
courts to exercise judicial power, by habeas corpus or otherwise,
within the jurisdiction of another and independent government. And
although the State of Wisconsin
Page 80 U. S. 406
is sovereign within its territorial limits to a certain extent,
yet that sovereignty is limited and restricted by the Constitution
of the United States. And the powers of the general government and
of the state, although both exist and are exercised within the same
territorial limits, are yet separate and distinct sovereignties,
acting separately and independently of each other within their
respective spheres. And the sphere of action appropriated to the
United States is as far beyond the reach of the judicial process
issued by a state judge or a state court as if the line of division
was traced by landmarks and monuments visible to the eye. And the
State of Wisconsin had no more power to authorize these proceedings
of its judges and courts than it would have had if the prisoner had
been confined in Michigan, or in any other state of the Union, for
an offense against the laws of the state in which he was
imprisoned."
It is in the consideration of this distinct and independent
character of the government of the United States from that of the
government of the several states that the solution of the question
presented in this case and in similar cases must be found. There
are within the territorial limits of each state two governments,
restricted in their spheres of action but independent of each other
and supreme within their respective spheres. Each has its separate
departments, each has its distinct laws, and each has its own
tribunals for their enforcement. Neither government can intrude
within the jurisdiction, or authorize any interference therein by
its judicial officers with the action of the other. The two
governments in each state stand in their respective spheres of
action in the same independent relation to each other, except in
one particular, that they would if their authority embraced
distinct territories. That particular consists in the supremacy of
the authority of the United States when any conflict arises between
the two governments. The Constitution and the laws passed in
pursuance of it are declared by the Constitution itself to be the
supreme law of the land, and the judges of every state are bound
thereby, "anything in the constitution or laws of any state to the
contrary notwithstanding."
Page 80 U. S. 407
Whenever, therefore, any conflict arises between the enactments
of the two sovereignties or in the enforcement of their asserted
authorities, those of the national government must have supremacy
until the validity of the different enactments and authorities can
be finally determined by the tribunals of the United States. This
temporary supremacy until judicial decision by the national
tribunals, and the ultimate determination of the conflict by such
decision, are essential to the preservation of order and peace, and
the avoidance of forcible collision between the two governments.
"The Constitution," as said by Mr. Chief Justice Taney,
"was not framed merely to guard the states against danger from
abroad, but chiefly to secure union and harmony at home, and to
accomplish this end it was deemed necessary when the Constitution
was framed that many of the rights of sovereignty which the states
then possessed should be ceded to the general government, and that
in the sphere of action assigned to it, it should be supreme and
strong enough to execute its own laws by its own tribunals, without
interruption from a state or from state authorities."
And the judicial power conferred extends to all cases arising
under the Constitution, and thus embraces every legislative act of
Congress, whether passed in pursuance of it or in disregard of its
provisions. The Constitution is under the view of the tribunals of
the United States when any act of Congress is brought before them
for consideration.
Such being the distinct and independent character of the two
governments within their respective spheres of action, it follows
that neither can intrude with its judicial process into the domain
of the other except so far as such intrusion may be necessary on
the part of the national government to preserve its rightful
supremacy in cases of conflict of authority. In their laws and mode
of enforcement, neither is responsible to the other. How their
respective laws shall be enacted, how they shall be carried into
execution, and in what tribunals, or by what officers, and how much
discretion, or whether any at all shall be vested in their
officers
Page 80 U. S. 408
are matters subject to their own control, and in the regulation
of which neither can interfere with the other.
Now among the powers assigned to the national government is the
power "to raise and support armies," and the power "to provide for
the government and regulation of the land and naval forces." The
execution of these powers falls within the line of its duties, and
its control over the subject is plenary and exclusive. It can
determine, without question from any state authority, how the
armies shall be raised, whether by voluntary enlistment or forced
draft, the age at which the soldier shall be received, and the
period for which he shall be taken, the compensation he shall be
allowed, and the service to which he shall be assigned. And it can
provide the rules for the government and regulation of the forces
after they are raised, define what shall constitute military
offenses, and prescribe their punishment. No interference with the
execution of this power of the national government in the
formation, organization, and government of its armies by any state
officials could be permitted without greatly impairing the
efficiency, if it did not utterly destroy, this branch of the
public service. Probably in every county and city in the several
states there are one or more officers authorized by law to issue
writs of habeas corpus on behalf of persons alleged to be illegally
restrained of their liberty, and if soldiers could be taken from
the Army of the United States and the validity of their enlistment
inquired into by any one of these officers, such proceeding could
be taken by all of them, and no movement could be made by the
national troops without their commanders' being subjected to
constant annoyance and embarrassment from this source. The
experience of the late rebellion has shown us that in times of
great popular excitement there may be found in every state large
numbers ready and anxious to embarrass the operations of the
government, and easily persuaded to believe every step taken for
the enforcement of its authority illegal and void. Power to issue
writs of habeas corpus for the discharge of soldiers in the
military service, in the hands of parties thus disposed, might be
used, and often would be
Page 80 U. S. 409
used, to the great detriment of the public service. In many
exigencies, the measures of the national government might in this
way be entirely bereft of their efficacy and value. An appeal in
such cases to this Court to correct the erroneous action of these
officers would afford no adequate remedy. Proceedings on habeas
corpus are summary, and the delay incident to bringing the decision
of a state officer, through the highest tribunal of the state, to
this Court for review would necessarily occupy years, and in the
meantime, where the soldier was discharged, the mischief would be
accomplished. It is manifest that the powers of the national
government could not be exercised with energy and efficiency at all
times if its acts could be interfered with and controlled for any
period by officers or tribunals of another sovereignty.
It is true similar embarrassment might sometimes be occasioned,
though in a less degree, by the exercise of the authority to issue
the writ possessed by judicial officers of the United States, but
the ability to provide a speedy remedy for any inconvenience
following from this source would always exist with the national
legislature.
State judges and state courts, authorized by laws of their
states to issue writs of habeas corpus, have undoubtedly a right to
issue the writ in any case where a party is alleged to be illegally
confined within their limits, unless it appear upon his application
that he is confined under the authority or claim and color of the
authority of the United States by an officer of that government. If
such fact appear upon the application, the writ should be refused.
If it do not appear, the judge or court issuing the writ has a
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. His return should be sufficient in its detail of
facts to show distinctly that the imprisonment is under the
authority or claim and color of the authority of the United States
and to exclude the suspicion of imposition
Page 80 U. S. 410
or oppression on his part. And the process or orders under which
the prisoner is held should be produced with the return and
submitted to inspection in order that the court or judge issuing
the writ may see that the prisoner is held by the officer in good
faith under the authority or claim and color of the authority of
the United States, and not under the mere pretense of having such
authority.
This right to inquire by process of habeas corpus, and the duty
of the officer to make a return, "grow necessarily," says Mr. Chief
Justice Taney,
"out of the complex character of our government and the
existence of two distinct and separate sovereignties within the
same territorial space, each of them restricted in its power and
each within its sphere of action prescribed by the Constitution of
the United States, independent of the other. But after the return
is made and the state judge or court judicially apprised that the
party is in custody under the authority of the United States, they
can proceed no further. They then know that the prisoner is within
the dominion and jurisdiction of another government, and that
neither the writ of habeas corpus nor any other process issued
under state authority can pass over the line of division between
the two sovereignties. He is then within the dominion and exclusive
jurisdiction of the United States. If he has committed an offense
against their laws, their tribunals alone can punish him. If he is
wrongfully imprisoned, their judicial tribunals can release him and
afford him redress."
Some attempt has been made in adjudications to which our
attention has been called to limit the decision of this Court in
Ableman v. Booth and
United States v. Booth to
cases where a prisoner is held in custody under undisputed lawful
authority of the United States, as distinguished from his
imprisonment under claim and color of such authority. But it is
evident that the decision does not admit of any such limitation. It
would have been unnecessary to enforce by any extended reasoning
such as the Chief Justice uses the position that when it appeared
to the judge or officer issuing the writ that the prisoner was held
under undisputed
Page 80 U. S. 411
lawful authority, he should proceed no further. No federal judge
even could in such case release the party from imprisonment except
upon bail when that was allowable. The detention being by admitted
lawful authority, no judge could set the prisoner at liberty except
in that way at any stage of the proceeding. All that is meant by
the language used is that the state judge or state court should
proceed no further when it appears from the application of the
party or the return made that the prisoner is held by an officer of
the United States under what in truth purports to be the authority
of the United States -- that is, an authority the validity of which
is to be determined by the Constitution and laws of the United
States. If a party thus held be illegally imprisoned, it is for the
courts or judicial officers of the United States, and those courts
or officers alone, to grant him release.
This limitation upon the power of state tribunals and state
officers furnishes no just ground to apprehend that the liberty of
the citizen will thereby be endangered. The United States are as
much interested in protecting the citizen from illegal restraint
under their authority as the several states are to protect him from
the like restraint under their authority, and are no more likely to
tolerate any oppression. Their courts and judicial officers are
clothed with the power to issue the writ of habeas corpus in all
cases where a party is illegally restrained of his liberty by an
officer of the United States, whether such illegality consist in
the character of the process, the authority of the officer, or the
invalidity of the law under which he is held. And there is no just
reason to believe that they will exhibit any hesitation to exert
their power when it is properly invoked. Certainly there can be no
ground for supposing that their action will be less prompt and
effect in such cases than would be that of state tribunals and
state officers. [
Footnote
2]
It follows from the views we have expressed that the Court
Commissioner of Dane County was without jurisdiction
Page 80 U. S. 412
to issue the writ of habeas corpus for the discharge of the
prisoner in this case, it appearing upon the application presented
to him for the writ that the prisoner was held by an officer of the
United States under claim and color of the authority of the United
States as an enlisted soldier mustered into the military service of
the national government, and the same information was imparted to
the commissioner by the return of the officer. The commissioner
was, both by the application for the writ and the return to it,
apprised that the prisoner was within the dominion and jurisdiction
of another government and that no writ of habeas corpus issued by
him could pass over the line which divided the two
sovereignties.
The conclusion we have reached renders it unnecessary to
consider how far the declaration of the prisoner as to his age in
the oath of enlistment is to be deemed conclusive evidence on that
point on the return to the writ.
Judgment reversed.
[
Footnote 1]
62 U. S. 21 How.
506.
[
Footnote 2]
In the matter of Severy, 4 Clifford.
In the matter
of Keeler, Hempstead 306.
THE CHIEF JUSTICE, dissenting
I cannot concur in the opinion just read. I have no doubt of the
right of a state court to inquire into the jurisdiction of a
federal court upon habeas corpus and to discharge when satisfied
that the petitioner for the writ is restrained of liberty by the
sentence of a court without jurisdiction. If it errs in deciding
the question of jurisdiction, the error must be corrected in the
mode prescribed by the 25th section of the Judiciary Act, not by
denial of the right to make inquiry.
I have still less doubt, if possible, that a writ of habeas
corpus may issue from a state court to inquire into the validity of
imprisonment or detention, without the sentence of any court
whatever, by an officer of the United States. The state court may
err, and if it does, the error may be corrected here. The mode has
been prescribed, and should be followed.
To deny the right of state courts to issue the writ, or, what
amounts to the same thing, to concede the right to
Page 80 U. S. 413
issue and to deny the right to adjudicate, is to deny the right
to protect the citizen by habeas corpus against arbitrary
imprisonment in a large class of cases, and, I am thoroughly
persuaded, was never within the contemplation of the Convention
which framed, or the people who adopted, the Constitution. That
instrument expressly declares that "the privilege of the writ of
habeas corpus shall not be suspended, unless when, in case of
rebellion or invasion, the public safety may require it."
