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The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.'

Writs of Habeas Corpus from State Courts. 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 appears 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 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 authority, of the United States, and to exclude the suspicion of imposition 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.”

The enlistment contract, muster-roll, process, or order, as the case may be, under which the persons are held, should be produced with the return, and submitted to inspection of the court.

* $ 761, Revised Statutes.

* Decision of the U. S. Supreme Court in the case of the U.S. vs. Tarble, 13 Wall, 397 ; Published in G. O. 16, A. G. O., April 16, 1872. See also Ableman vs. Booth, 21 Howard, 506.

Since the State court has no authority to issue this writ when a person is held under the authority, or claim and color of authority, of the United States, an officer, while making respectful return, should not produce the body of the prisoner, nor allow it to be taken from him." Upon this point Attorney-General Bristow said:—“And if the authority of a State, in the form of a judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of the law against illegal interference.””

Suspension of the Writ of Habeas Corpus. The constitution provides 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. While strong arguments have been advanced to show that this power of suspending the privilege of this writ resides in the President, the accepted opinion is that Congress must take the initiative, and either suspend it by an act directly accomplishing the fact, or authorizing the President to do so.

Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and, on its return, the court decides whether the applicant is denied the right of proceeding any further.”

1 For form of Return see Appendix.

* XIII. Opinions Attorney-General, June 19, 1871. * Ex parte Milligan, 4 Wall, 4.

When the privilege of the writ is suspended, an officer must nevertheless make respectful return.

Manner of obtaining Writ of Habeas Corpus. As it may often be necessary to obtain a writ of habeas corpus, the instructions contained in the Revised Statutes of the United States are given.'

Application for the writ should be made to the court, or justice, or judge authorized to issue the same by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application.

Such application would be appropriate in the case of a soldier, held in custody by the State authorities for an act committed under the authority of the United States; or to secure the attendance of a witness confined in jail, where it is desired to bring him before a court-martial to testify.

Officers Prosecuted in State Courts. In cases of officers and others, sued or prosecuted in State courts on account of acts done under the authority of the United States, it is ordinarily the first duty of the counsel employed for their defense to cause the removal of the action to the United States circuit court, if such removal is authorized by the acts of Congress on the subject. It has been the experience of the War Department that such a proceeding has in a vast majority of the cases insured a complete protection to the defendant; resulting in a verdict or judgment in his favor, or in a dismissal of the action —on the motion often of the plaintiff or prosecutor, who finds himself wholly thwarted in his scheme of retaliation or revenge.”

* $ 754, Revised Statutes. * Opinions J. A. G., p. 126.

CHAPTER XXIII.

EVIDENCE.

As a text book on Military Law would be incomplete for practical purposes without something on the subject of Evidence, the author has added the following pages to meet that want. It is not his intent, nor within his ability, to write an elaborate treatise on this most important subject; nor is such a treatise necessary. The great principles and general rules of evidence meet all the requirements of the majority of cases in military practice. They have been gathered from the best writers on the subject, both in this country and England, and are presented to the reader as concisely as possible, without entering largely into the reasons of their adoption.

Rules of Evidence governing Courts-Martial. While Congress has authorized courts-martial, established their composition, jurisdiction, and rules of procedure, it has never prescribed the rules of evidence which shall govern their proceedings. Courts-martial, being courts alone of criminal jurisdiction, must therefore adhere to the rules of evidence of the United States criminal courts."

These rules are the common law rules of evidence in criminal cases, except where Congress has prescribed otherwise. The only other exceptions which are permitted are those which are of necessity created by the nature of the service, and by the constitution of the court, and its course of proceeding." Definition. Evidence is that which (independent of all comment and argument) is legally submitted to a court or jury to enable them to decide upon the questions in issue.” This term, and the word proof, are often used indif. ferently, as synonymous with each other; but the latter is applied by the most accurate logicians to the effect of evidence, and not to the medium by which truth is established.” Divisions. Writers on Evidence make various divisions, which are to a great extent arbitrary. The subject, for convenience of discussion, will be arranged under the following heads:— 1. The Nature of evidence. 2. The Object of evidence. 3. The Instruments of evidence.

* II. Opinions Attorney-General, p. 344; Greenleaf, Vol. III, § 469.

THE NATURE OF EVIDENCE.

As to its nature, evidence may be considered under the following divisions, (1) Primary, (2) Secondary, (3) Direct, (4) Circumstantial, (5) Hearsay.

Primary Evidence is that kind of proof which, under any possible circumstances, affords the greatest certainty of the fact in question."

This may include written or unwritten evidence. For example, if the question is whether a person made a will, the production of the will is primary evidence : if the will is to be proved, the oral testimony of a subscribing witness is primary evidence.

* Greenleaf, Vol. 3, § 476. * De Hart, p. 325. * Greenleaf, Vol. 1, § 1. * Ibid., § 84.

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