1039. 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.

1040. 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 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.

1041. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, "grows 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."

1042. 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 The United States v. Booth, to cases where a prisoner is held in custody

6 The return need not be verified under oath.-In the matter of Thomas H. Neill, on habeas corpus, U. S. District Court, Southern District of New York.

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 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."

1043. 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 efficient in such cases than would be that of State tribunals and State officers &

1044. It follows, from the views we have expressed, that the court commissioner of Dane County was without jurisdiction 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

But in the case of Riley (1 Benedict, 408) it was decided that by virtue of the acts of 1864 (¶¶ 499, 500) the power of discharging from service in the army minors under the age of eighteen (the enlistment of minors over that age without the consent of their parents or guardians being lawful) was taken away from the courts, and was confided wholly to the secretary of war. But see Chap. xvii., note 5.

8 In the matter of Severy, 4 Clifford. In the matter of Keeler, Hempstead, 306.

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.

1045. 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.9

1046. The judgment of the supreme court of Wisconsin must be reversed; and it is so ordered.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON.MAY 24, 1871.

In the matter of WILLIAM B. BIRD,-on writ of habeas corpus.10

1047. Where by the sentence of a court-martial a soldier is discharged from the service before the expiration of his term of enlistment, and such sentence is afterwards set aside as null and void, the status of such soldier is not affected in any way by such sentence, and he is deemed to have been in the service all the time between the sentence and the order setting it aside. Under Article of War 88, it appears that a soldier may be arrested and tried after the expiration of his term of service, for a military offense committed

during such term of service, so that the order for the court-martial is issued within two years from the commission of such offense.

In any view of the matter a soldier may be held for trial after the term of his enlistment, by military authority, if arrested for the offense before the expiration of his term of service.

The petitioner while in faet discharged from the army, but before the expiration of his term of enlistment, having committed a homicide, might be arrested and held for trial therefor by the military authority, the discharge being afterward set aside as null and void, and the petitioner being at the time a soldier de jure.

1048. DEADY, J.-The petition for the writ was filed May 8, 1871, and on the same day an order was made allowing the writ as prayed for returnable before the judge at chambers, on May 11. In the petition it is alleged that petitioner is confined in Multnomah County jail by one James H. Lappeus, chief of police of the city of Portland, for the purpose of aiding the

9 See Chap. xvii., note 5.

10 Published in memorandum of June 10, 1871, from headquarters department of the Columbia.

officers of the military department of the Columbia to transport petitioner to Alaska, upon the pretense that a crime has been committed by the petitioner against the rules and regulations of the army of the United States; and that the imprisonment of petitioner is illegal in this, that petitioner is a citizen of the United States, and not amenable to said rules and regulations.

1049. On May 11, respondent Lappeus produced the body of the petitioner as commanded by the writ, and filed a return thereto, stating that the petitioner was placed in his custody on May 7, 1871, by one Lieutenant Dennison of the army of the United States, and the cause of his imprisonment as he was informed.

1050. Thereupon, it appearing from the return of said Lappeus that the petitioner was really in the custody of the military authority for the department of the Columbia, and that said Lappeus only held said petitioner in his custody casually, as a jailer for said authority; it was ordered that petitioner's counsel cause a copy of the petition, writ, return, and this order to be served upon the general commanding the department of the Columbia within twenty-four hours, to the end that such officer might take such steps to appear and contest the petition as he may be advised to be necessary and proper, and that the proceeding be continued until May 15.

1051. On May 15, the parties aforesaid appeared, and also the general commanding the department, by Louis V. Caziarc, A. A. A.-G., who then stated in writing that petitioner was a soldier of the army of the United States, and in the lawful custody of the military authority of this department, and as such was held for violations of the rules and regulations for the government of the army; and that since May 8 respondent Lappeus only held petitioner because of the writ herein. On the same day the petitioner demurred to the returns to the writ as insufficient in law to justify the detention.

1052. Thereupon an order was made restoring the custody of the petitioner to the authority of the general commanding the department of the Columbia, to be by him, and those acting under his orders or authority, safely kept within the jurisdiction of this court, and produced before the judge thereof on May 18, and that said general then make a return herein, in due form, of the causes and reasons for detaining the petitioner in custody. 1053. On May 18, respondent Caziarc filed an answer to the petition, and the petitioner replied thereto.

1054. On May 19, the cause was argued and submitted upon the answer and replication and exhibits thereto, and taken under advisement. From these it appears:

1055. I. That William B. Bird, the petitioner, was duly enlisted as a private in the army of the United States on June 15, 1867, to serve for the period of three years.

1056. II. That at the post of Sitka, Alaska, by the sentence of a courtmartial, convened at said post in pursuance of Special Order No. 70, dated October 14, 1869, the petitioner, then being a private in Battery "H," Second

Artillery, was sentenced to three months hard labor and to be dishonorably discharged from the army; and that about January 23 petitioner was so discharged at the post aforesaid.

1057. III. That the petitioner was tried before said court-martial upon two charges and sundry specifications thereunder, to the effect that said petitioner, about September 25, 1869, refused to be sworn or testify as a witness before a board of officers convened at the post aforesaid, to investigate certain accusations against sundry citizens and enlisted men, and that on October 18, 1869, he wrote a disrespectful letter to his department commander, General J. C. Davis.

1058. IV. On the trial, at Sitka aforesaid, the petitioner made the preliminary objection that the court-martial could not lawfully take cognizance of the charges against him, because it was convened by said Davis, who was also his accuser; and on September 24, 1870, the secretary of war, upon the report and opinion of the judge-advocate-general, sustained the objection, and set aside the sentence of the court as illegal and void, on that account, and also directed that the petitioner "be brought to trial on a charge of manslaughter to the prejudice of good order and military discipline," committed in the killing of Lieutenant L. C. Cowan, of the United States revenue service, as hereinafter stated; and afterwards, on November 10, 1870, the petitioner, by Special Order No. 150, of headquarters department of the Columbia, in pursuance of the aforesaid order of the secretary of war, was reinstated in his rights, duties, and obligations as a soldier, as if no such proceedings had been taken, and as of the date of the order appointing the court," to wit: October 14, 1869.

1059. V. That on March 8, 1870, by the verbal order of said Davis to Captain Brady, commanding post of Sitka, the petitioner was arrested and confined at said post upon the charge of killing said Cowan, which order was, on June 14, 1870, confirmed and continued by a written order from said Davis to said Brady, instructing the latter to “retain petitioner in custody until further instructions from the proper authority;" and as appears from the report of a board of officers convened at the post aforesaid, on March 10, 1870, the petitioner on the night of February 25, 1870, in an unlawful attempt to take the life of his former company commander, Captain Dennison, in a saloon at Sitka, shot and killed said Cowan under circumstances which "showed a perfect disregard of human life," and constituted "an aggravated case of manslaughter."

1060. VI. That a court-martial convened at Sitka aforesaid, November 30, 1870, pursuant to Special Orders No. 149, of headquarters of the department of the Columbia, and afterwards adjourned to Fort Vancouver, Washington Territory, the petitioner was tried and found guilty of the charge of "murder-to the prejudice of good order and military discipline," committed on the killing of Lieutenant Cowan as aforesaid, and by said court was among other things sentenced to be dishonorably discharged from the service of the United States, and to be confined at hard labor for the period of fifteen years in such penitentiary as the commanding general may designate; and