plete and perfect jurisdiction in the case; and there is no need of the jurisdiction or interference of the state courts; nor does it appear to me to be fit that the state courts should be inquiring into the abuse of the exercise of the authority of the general government. Numberless cases may be supposed of the abuse of power, by the civil and military officers of the government of the United States; but the courts of the United States have competent authority to correct all such abuses, and they are bound to exercise that authority. The responsibility is with them, not with us; and we have no reason to doubt of their readiness, as well as ability, to correct and punish every abuse of power under that government. The judicial power of the United States is commensurate with every case arising under the laws of the Union, and the act of Congress,' gives to the federal courts, exclusively of the courts of the several states, cognizance of all crimes and offences cognizable under the authority of the United States. If the soldier, in the present case, be detained against his will, knowing him to be an infant, or if, though an adult, he has been compelled to enlist, by duress, or violence, it is a public offence, but an offence of which this court cannot take cognizance. An abuse of the authority of the United States is an offence against the United States, and exclusively cognizable in their courts. When the state courts have not jurisdiction over the whole subject matter of the imprisonment, and when the federal courts have such jurisdiction, by indictment as well as by habeas corpus, there appears to me to be a manifest want of jurisdiction in the case.

*"The want of jurisdiction over the offence of un- [179 lawful imprisonment by indictment, seems equally to exclude the collateral remedy by habeas corpus, except where a jurisdiction in the latter case is specially conferred. The writ of habeas corpus, as applied to such

1 Laws of U. S., vol. I., 53, 55.

purposes, is a prerogative writ, and the issuing of it in term-time rests in sound legal discretion. There appears to be an incongruity in such a maimed jurisdiction as this court would possess, of having a right to deliver from an illegal imprisonment, and yet no right to call to an account the authors of such illegality and oppression. The general principle is, that if a court has no jurisdiction of the principal question, it has none of its consequences and incidents. Thus it is laid down that a common law court has no cognizence of any question incidental to that of prize, because they are incompetent to embrace the whole subject matter.' It would be easy to state and multiply difficulties in the exercise of any jurisdiction in cases arising under the exercise of the authority of the government of the United States, or in drawing with precision any line between the cases in which we may, and in which we may not, interfere by habeas corpus. Suppose the marshal of the district were to detain a person in prison, under color of process, when it could be shown to this court that the process was void, or that the arrest was after the return day, would a state court undertake to deliver the party from the marshal's custody? I presume not, and yet I see no reason for any distinction, as to the question of jurisdiction, between that case and the present. The detention in each case is by an officer of the United States, under color of its authority.

"The civil remedy of the party by private suit in a state court, is a distinct question, not before us; and in cases of private suits, the state courts have, in most cases, by the act of Congress, a concurrent jurisdiction. My conclusion is, that it would not only be unfit for the 180] court to interpose in *this case so long as the courts and judges of the United States have ample and perfect jurisdiction over the whole subject matter, but that it would also be exercising power without any jurisdic

Le Caux v. Eden, Dug. 594.

tion, and therefore I am of opinion that the writ ought to be denied."

Thompson, J., said: "I concur in refusing the allowance of the habeas corpus; but I think it unnecessary to disclaim having jurisdiction, in any case, where the imprisonment or restraint is under color of the authority of the United States. Questions of jurisdiction between the United States courts and the state courts are generally nice and delicate subjects. I should be unwilling to assume jurisdiction where we have it not. And I do not feel myself at liberty to renounce it, when it is given to this court. The case of Emanuel Roberts, referred to by the Chief Justice, seems to be the only one where this question has received a judicial decision; and although in that case the habeas corpus was denied, yet Nicholson, Ch. J., said there might be cases in which it would be the duty of the state courts to interfere. The immediate object of a habeas corpus is to liberate the party from an illegal restraint. The allowance of it does not necessarily draw after it an inquiry into any offence, committed either by the party imprisoned or by him who assumes the right of restraint. The criminal offence is still open to the cognizance of the proper tribunal. The state courts must have the power, in many cases, to determine upon the extent and operation of the laws of Congress. As in the case now before us, if a civil suit should be brought for false imprisonment, the legality of the enlistment, under the act of Congress, would probably be involved, and must be determined collaterally. And this is the only inquiry upon the habeas corpus. The objections, however, stated by the Chief Justice, against the jurisdiction of this court, are entitled to great consideration; and as the allowance of the writ, in term-time, rests in sound legal discretion, and as the party may have relief by *application [181 to one of the judges of the Supreme Court of the United States, or of the District Court for this district, whose jurisdiction in the case is unquestionable, I think the

application ought to be denied."

Spencer, J., Van Ness., J., and Yates, J., concurred; expressly reserving themselves as to the question of jurisdiction, but agreeing, for the reasons assigned by Thompson, J., that the application ought to be refused.

The views of the Chief Justice were not finally adopted by the Supreme Court of New York. The year following they enforced, by the most efficient means known to the law, attachment for contempt, obedience to a writ of habeas corpus allowed by a commissioner of the court, directed to Morgan Lewis, "General of division in the army of the United States," commander of the troops of the United States at Sackett's Harbor, commanding him to bring up the body of Samuel Stacy, "a naturalborn citizen, born in the state," who it appeared from the affidavits upon which the motion for attachment was founded, had been arrested by Commodore Chauncey on a charge of treason, and by his authority delivered into the custody of General Lewis, who placed him in close confinement. In delivering the opinion of the court, directing an attachment to issue against General Lewis for making an evasive return to the writ, Kent, Ch. J., said: "This is a case which concerns the per sonal liberty of the citizen. Stacy is now suffering the rigor of confinement in close custody, at this unhealthy season of the year at a military camp and under military power. He is a natural-born citizen residing in this 182] state. He has a numerous family dependent upon him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason (for upon the facts before us we must consider it as a pretext), without being founded upon oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only aggravation of the oppression of confinement. It is the indispensable duty of this court, and

one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of those means is the writ of habeas corpus, which has justly been deemed the glory of the English law."

And in the case of Carlton,' occurring in 1827, the Supreme Court unanimously affirmed their right to discharge a minor who had enlisted in the United States army, alleging himself at the time to be over twentyone; Savage, Ch. J., said: "By the act of Congress, the enlistment is void; and the soldier ought to be discharged if this court have jurisdiction. We have jurisdiction unless it has been expressly surrendered or taken away. Any person illegally detained has a right to be discharged, and it is the duty of this court to restore him to his liberty. No act of Congress or of this state has forbidden the exercise of this common law jurisdiction. We are of opinion that Carlton should be *discharged by the recorder, whose power upon [183 this writ is the same as ours."

It is supposed that this authority is exercised now without hesitation by the courts of New York.'

The opinion of Kent, Ch. J., in the case of Ferguson,' was pressed upon the attention of the Supreme Court of Pennsylvania, in Lockington's case,' occurring in 1813; and the right of the state courts to issue the writ was reexamined and reaffirmed by all the judges.

Tilghman, Ch. J., addressing himself to the question with his wonted vigor, said: "It is to be observed that the authority of the state judges, in cases of habeas corpus, emanates from the several states, and not from the United States. In order to destroy their jurisdiction, therefore, it is necessary to show, not that the United States

1 7 Cow. 471. 39 Johns. 239.

2 United States v. Wyngall, 5 Hill, 16.

4

Brightley's Rep. 269.