The other Judges all concurred in denying the writ, on the ground that the Judges of the United States Courts, having complete jurisdiction of the case, the application ought to be made to that Court.

This Court has however since in several instances claimed and exercised jurisdiction in such cases. It did so in the case of Carlton, 7 Cow. 471; following several cases in the Massachusetts Courts; and also assumed the right to exercise it in the case of Wyngall, 5 Hill 16.

In neither of these cases was the question discussed by counsel or by the Court. The case of Carlton arose upon a submission of the point to the Court by the Recorder of New York, who had exercised jurisdiction in the case of a soldier held at West Point. No opinion was written by the Court. The Chief Justice, in brief terms, affirmed the jurisdiction of the Recorder in such cases. In the case of Wyngall, 5 Hill, a Supreme Court Commissioner had exercised jurisdiction in such a case, and discharged a soldier enlisted, &c., on the ground that he was an alien. The Court reversed the decision, but did not discuss the question of jurisdiction.

Under these cases, I think the Judges of this Court would have generally claimed and exercised jurisdiction in such cases, as such jurisdiction has been exercised in many of the other State Courts before the decision in the case of Ableman vs. Booth.

This is a case in the Supreme Court of the United States, whose decisions upon questions arising under the Constitution and laws of the United States are conclusive authority upon all State and inferior Courts.

In this case, it is conceded, in the opinion of Judge TANEY, that the State Judges may issue the writ of habeas corpus upon a proper application showing an illegal restraint, and inquire in this mode of proceeding by what authority and for what cause any party is imprisoned or restrained of his liberty within the territorial limits of the State sovereignty; and he holds also that it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the Judge or Court by a proper retur the authority by which he holds him in custody.

He says: "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 offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, THEIR judicial tribunals can release him and afford him. redress."

This case, in its facts, is not precisely the same as the cases under consideration. It presents a case where the writ of habeas corpus was used to wrest from a United States marshal a prisoner held under judicial process from a United States Commissioner, and also in effect to review and annul the decision and judgment of a United States District Court upon the trial and indictment for an offence under a law of Congress, on the ground that the law was unconstitutional. A more palpable perversion of the writ could hardly be imagined.

But this case of Ableman vs. Booth, in principle, covers the cases in hand, I think, very clearly and conclusively.

The theory of our Government, asserted in this able opinion of Chief Justice TANEY, which was obviously prepared with great care and deliberation, and received the assent of all his brethren upon the bench in the year 1858, consisting of Associate Justices. MCLEAN, WAYNE, CATRON, DANIEL, NELSON, GRIER, Campbell, and CLIFFORD, is that the powers of government in this country are divided between, and are intrusted to, two distinct sovereignties -the National and State Governments; that each in its particular sphere is independent, exclusive, and supreme. That each of these sovereignties has its particular executive legislative and judiciary departments. That each of these departments of government is limited to its particular sovereignty, and that neither the National Government nor the State Governments can authorize its Courts to exercise judicial power within the jurisdiction of the other

sovereignty. That in this particular they stand to each other in the relation of independent governments.

Judge TANEY says: "The power 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 in a State Court as if the line of division was traced by landmarks and measurements visible to the eye. And the State of Wisconsin had no more power to authorize these proceedings of its Judge 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 offence against the laws of the State in which he was imprisoned."

Upon this theory every citizen owes to his country a divided duty to the National Government he owes allegiance and the duty of submission and obedience to its laws, and to the State Government, obedience and submission to its laws; each in the proper sphere. Within the sphere of the National Government. its Judiciary protects his rights and vindicates his wrongs; and within the sphere of the State Government, its Judiciary enforces his duties, protects his rights, and gives redress for the injuries he may receive in person or property.

When the citizen whose normal condition is under the State Governments, passes the boundary which separates the State and National sovereignties, he subjects himself to the judicial power of the National Government, which is entitled to interpret and enforce the law of its sovereignty exclusively, except in such particulars as under the Constitution of the United States, the State and National Judiciary possess concurrent jurisdiction. Such is the clear doctrine of this case.

It proceeds from a Court which, by the Constitution of th United States, is entitled to decide and finally determine all que tions and controversies relating to the respective powers of th United States and the States.

If I doubted in respect to its correctness, it would be my duty, nevertheless, to acquiesce in and submit to it as the authoritative exposition of the law governing the cases under consideration.

But it seems to me that the doctrine asserted in this case of Ableman vs. Booth is very essential to the maintenance of the national authority, especially in a time of war. No government could maintain and exercise its powers in their full vigor when its acts could be controlled by the Judiciary of another sovereignty, or by a Judiciary owing its appointment and authority to another government. If every act of the General Government affecting the personal liberty of the citizen can be overhauled upon habeas corpus by the Judges of the State Courts, incalculable embarrassments and mischief might be the inevitable result.

Judge LowRIE, in his able opinion in the Passmore Williamson case, supra, says, in respect to such mischief: " Any man arrested or imprisoned by warrant, or execution, or sentence from District, Circuit, or Supreme Courts, or either House of Congress, might have relief from any friendly county Judge wielding the power of habeas corpus.

"A Judge impeached, convicted, and sentenced-a traitor tried and condemned, may still have hope from the habeas corpus, if a Judge can be found ignorant or insubordinate or degraded enough to declare that his superiors acted without jurisdiction."

The present condition of this country illustrates much more than in times of peace the importance and necessity of this doctrine, to enable the Government properly to perform its high functions.

In many localities in this country aside from the States which have professedly renounced the National authority, it is notorious that there are some evil-disposed persons in sympathy with the enemies of the country, who are opposed to the war, and who evince a spirit of hostility to the Government by hindering enlistments and volunteering-by enticing enlisted men to desert-in secreting deserters-and resisting by force their arrest and return o the army, and who by opposition to the draft and various other nodes of proceeding are seeking to defeat the operations of the

Government in conducting the war. It would be surprising if such men could not find some convenient Judge who would issue writs of habeas corpus, and by this process discharge all persons brought before him, on the ground that the laws of Congress authorizing enlistments, or the draft and the arrest of deserters, and perhaps the war itself, was unconstitutional, and thus give the color of law to their disloyal acts and proceedings.

It is no answer to this view that the Supreme Court of the United States has finally decided in this case of Ableman vs. Booth-the question still in dispute in England and much discussed heretofore in this country-that a writ of error will lie to the final decision and judgment in cases of habeas corpus. No such writ or error to the Supreme Court of the United States would lie except to the Court of last resort in the respective States. The proceedings upon habeas corpus are summary. Upon the decision of the Judge entertaining these proceedings, if it be that the prisoner is unlawfully restrained. of his liberty, it would be ordered that he be discharged from such imprisonment. By this process the army might be depleted by desertion, and the deserters discharged by habeas corpus. Proceedings to reverse such decision would be quite idle and useless for all practical purposes, for in the ordinary course of judicial proceedings several years would elapse before the case could reach the Supreme Court of the United States for review, and a reversal of the erroneous decision of the Judge even by the Supreme Court of the State could not be had in time to prevent the mischief.

Independently of their concurrence in the decision of Ableman vs. Booth, Judge NELSON asserted the same doctrine in his charge to the Grand Jury in the Circuit Court in the city of New York, at the April Term, in 1851-vide Hurd, on Habeas Corpus, 198 and 199 and Judge MCLEAN asserted the same doctrine in substance in the case of Ninis vs. Newton, 5 McLean Rep. 92.

Since the decision in this case was made, and since most of the foregoing was written, the August number of the American Law Register has come to hand, containing the report of the case of Jacob Spangler, p. 598, decided by the Supreme Court of Michi