In the matter of Hopson. or whether any in fact is necessary, had not been defined. The question has indeed often been debated in the state courts, and, to some extent, in the tribunals of the United States, but a precise case covering all the ground embraced by the one now before me will not, probably, (with perhaps a single exception) be found. The principle which underlies it may, and I think will be, discovered in the celebrated case to which I shall allude hereafter, and which formed the ground-work of the direction under which the provost marshal, in this instance, proceeded. It may not be altogether useless or uninstructive to glance at the state of the question as it is presented by several adjudications made at various periods by the state courts, and note the character of a few of the decisions. It will be found to be a singular fact, that in some of the extreme southern states the power to interfere with the action of the United States had been repeatedly disclaimed, while in some of the northern states, and particularly in Pennsylvania and in Massachusetts, "reproached, obnoxious, but ever loyal Massachusetts," it has been strongly maintained. In Georgia a case involving this question arose in 1807. A writ of habeas corpus appears to have been issued by some judge, to bring up two seamen who had been arrested for desertion, by a justice of the peace, under an act of congress. From the statement of the case it does not distinctly appear whether this arrest was made by any process issued by the justice, or was a manual caption simply under the authority of the act. A motion having been made for their discharge, the judge said, "The proceeding of the justice appears to be regular under the act, and although this court has not denied the benefit of the writ of habeas corpus, yet it is conceived that it possesses no jurisdiction in the present The powers given to the justice are derived from the laws of the United States, and whether used properly or improperly, is not a subject for the investigation of this case. court. In the matter of Hopson. In Maryland the case of Emanuel Roberts arose in 1809. He was brought up before Judge Nicholson upon a habeas corpus, the petition alleging that he had been seized and carried forcibly aboard a vessel lying in the harbor of Baltimore. The return stated, and the fact was shown, that he had voluntarily enlisted in the service of the United States, and received three months wages in advance. It was then proposed to be proved that Roberts was only sixteen years of age and was intoxicated when he enlisted. The judge declined to go into the inquiry on the ground, in part, that the government could not be summoned into court to have the nature of its contracts of enlistment inquired into, and he concluded by saying, "here the whole proceeding is under the constitution and laws of the United States. I am, therefore, decidedly of opinion that this court has no right to interfere in the present case." The process of reasoning in the case is not perhaps very satisfactory, but in the conclusion, the principle upon which it seems to have proceeded is stated in precise and emphatic terms. The decision is cited by Chancellor Kent as one determining against the jurisdiction of a state court where the authority of the United States is interposed, as it was in that instance. But what is quite remarkable is, that this power to interfere has been disclaimed in South Carolina, the very hot-bed where the extreme doctrines of state independence and state sovereignty have had their rankest growth, perpetually cropping out in acts not of infidelity merely, but of open hostility to the general government, and culminating at last, as was long ago foreseen and predicted by the wise and honest statesmen of our country, in the horrible and accursed rebellion which has deluged the land in blood, and sent mourning and desolation to thousands of happy households throughout all our borders. In 1819, a prisoner was arrested by a warrant from a justice of the peace, in South Carolina, on the charge of counterfeiting protections to seamen, in violation of the laws of the United States. On being brought before In the matter of Hopson. Judges Cheves, it was insisted that the magistrate had no power to commit, because the section of the act of congress which conferred such power was unconstitutional. But the judge held that he had no jurisdiction over the case; that criminal jurisdiction under the laws of the United States was necessarily exclusive, and as a state court he would not take cognizance of the matter, under a habeas corpus, nor declare an act of congress unconstitutional and void. The latest decision denying jurisdiction in the state courts has been made by the supreme court of the state of Michigan. It holds clearly and strongly, that a state judge has no power to discharge upon a habeas corpus a person held by the draft commissioners simply under the authority of the act of congress authorizing the draft. (In rc Spangler. Am. Law Reg. for Aug. 1863.) On the other hand, very strong and emphatic opinions have been given, and decisions made in Pennsylvania, New Jersey and New Hampshire, and, I presume, in other of the northern states, upholding the power of the state courts to inquire into detention claimed to be made by the authority of the United States. (a) It is not necessary to allude to them in detail, because it is conceded that they maintain the power to the fullest extent that can ever be claimed for it. In Massashusetts, also, the same doctrine has uniformly prevailed, although it is perhaps remarkable that in the celebrated case of Sims, the supreme court, sitting in bank, refused to grant the writ of habeas corpus. They allowed the question of the constitutionality of the fugitive slave law of 1850 to be argued at length, and, indeed, the decision (a) Since this opinion was prepared my attention has been directed to the fact that in several quite recent cases in New Jersey decisions have been made denying the state jurisdiction in cases of this character. The latest reported case is The State v. Zulick, (5 Dutch. 409,) which is a clear and precise authority holding the ground maintained by me in this opinion, and this doctrine is now understood to be generally if not univerally concurred in in the state of New Jersey In the matter of Hopson. seems to have proceeded upon an affirmation by the court of the validity of that law. The very able and learned Chief Justice Shaw, in the course of his opinion, (7 Cush. 285,) suggests the question how far it was competent for that court, by a writ of habeas corpus to the marshal, to take a prisoner from the custody of another tribunal, court, or magistrate, of which the marshal is the executive officer, and after he has been placed under the control of the magistrate. It was evidently an embarrassing question, and was only avoided by considering what seems to have been the overruling inquiry into the constitutionality of the fugitive slave act. On the question suggested by him he merely says: "We do not mean to say that this court will in no case issue a writ of habeas corpus to bring in a party held under color of process of the courts of the United States, or whose services and the custody of the person are claimed under authority derived from the laws of the United States." But he adds, "It is manifest this ought only to be done in a clear case, and where it is necessary to the security of personal liberty from illegal restraint." It has been sometimes claimed that the question of the constitutionality of a law of the United States is one that belongs specially and, indeed, exclusively to the judicial tribunals of the union, and that when presented in a state court, or in a proceeding therein instituted, it is not to be entertained, but remitted in some form to that ultimate and superior tribunal. No doubt the decision of this last tribunal is the only one that carries with it a final and conclusive sanction; but it is inevitable that such questions should, at least incidentally and collaterally, arise in the state courts; and in some cases, (as, for instance, the recent cases in which are involved the taxing power of the state in reference to government stocks and the legal tender causes,) the constitutional question is the paramount, if not the only one presented for adjudication. I may remark, however, in passing, that no such question has been made or argued before me as In the matter of Hopson. to the validity of the law under which the provost marshal here professed to act. I am aware that the argument most in vogue in these days is that which professes to deal with the constitutional power to enact laws unwelcome in certain quarters, and offensive to the sensibilities, or at war with the supposed interest or convenience of individuals. Such questions are argued by bar-room Solons and pot-house Justinians at the corners of the streets, with as much zeal and pertinacity as by governors in their chairs of state, and with about as large a claim to consideration or authority in the one case as in the other. But no respectable counsel will be found to argue that, under a constitution which gives to congress the power "to raise and support armies," it has not the necessary and incidental power to maintain the discipline and preserve the existence of these armies, by dealing in the most effective and summary way with the whole matter of desertion, and providing in the most stringent, direct and forcible manner for the arrest, detention and punishment of deserters. The law in that branch of it under which the proceedings of the provost marshal was taken, as to its constitutional validity, has not in this discussion for a moment been brought in question. The condition of the law in this state on the subject of jurisdiction we have been discussing, cannot be deemed to be very satisfactory. In the earliest case reported (In re Husted, 1 John. Cas. 136,) the supreme court held that a state court had no jurisdiction to discharge on habeas corpus a soldier claimed to belong to the army of the United States, but the question was not discussed at any length. A few years later, however, (in 1812,) the case of Ferguson arose, reported in 9 John. 239. The case is remarkable as containing an elaborate and able argument of Kent, then chief justice, wholly denying the jurisdiction of the court to entertain the application. The petition was addressed to the full bench of the supreme court, and set forth that Ferguson was held by one Christie, an officer in the army of the United |