punishable by the known laws of the land, the commanding officer, and officers of eyery regiment, troop or company, to which the person, or persons, so accused, shall belong, are hereby required, upon application duly made by, or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons, to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer or officers, shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person or persons, to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers, so offending, shall be cashiered." U. S. Statutes at Large, vol. 2, page 364.

Upon this article of war, as applied to the facts of this case, two questions naturally arise:

First. Is a soldier on furlough, so in the jurisdiction of the military and control of the commanding officer of his company or regiment, as that he may be "delivered over" upon application duly made?

Article 12 of the Laws of Congress, supra, provides for the granting of furloughs to officers and soldiers. A "furlough" is a leave or license given by a commanding officer to an officer or soldier to be absent from service for a certain time. (Webster's Dic.) Or, as it is given by Mr. Bouvier, “is a permission given in the army and navy to an officer or private to absent himself for a limited time." (Bouvier's Law Dic.) A soldier on furlough, then, is not necessarily in the custody or control of his commanding officer, for he has "permission to absent himself"; nor is he necessarily within the military jurisdiction, for he has "leave to be absent from service." When he is thus absent from the service and his commanding officer, he is not so in the custody of such officer as that he can be by him delivered over in the meaning of that term, as used in the article of war quoted supra.

To illustrate my meaning, suppose a party was arrested under a process from the United States Court, and was being held by virtue of such process, in open court, awaiting his trial. While in such condition, he could not be again arrested by virtue of another process issued from a State court. This is clear. But suppose his trial, for any cause, was postponed to another term, and he should give bail for his appearance at such subsequent term, and therefore have leave "to absent himself for a limited time," to wit, till such term, he could then be arrested again under the state process, without any conflict with the federal jurisdiction. A plea in this latter case, that he was within the federal jurisdiction, would be unavailing, since he had leave to depart or absent himself for a certain time from that jurisdiction, although he was bound to return to it, at a specified time, and might, under certain circumstances, be re-arrested and committed to its immediate jurisdiction before the expiration of that time.

So, with the soldier, while he continues in the actual military service, he is within the immediate jurisdiction of the military authorities, and being so held, he cannot be arrested on civil process, except in

the manner provided by the article of war relied upon by appellant's counsel in this case. But being permitted to absent himself from service, he is thereby without the military jurisdiction, and may, therefore, be arrested as any other person, and no conflict can arise. It can make no difference, even if true, that a soldier's furlough may be withdrawn at any time at the pleasure of his commanding officer, or that he may be arrested by such officer during its continuance, for, while his furlough remains in force, and he is absent from service. on it, he is not within the military jurisdiction, and cannot be delivered over by its authorities until they shall first regain possession of him by arrest or otherwise, which arrest, for liability under the civil law, may as well be primarily done by the civil authorities as by the military.

Second. Was that article of war adopted to aid the civil authorities. and jurisdiction, or to defeat such jurisdiction and make the military authority paramount?

A single reading of the article will satisfy and convince an impartial mind that the sole purpose of it was to aid the civil authorities in the administration of justice, and to place it out of the power of a criminal to escape the just civil penalties of his acts, by entering the military service or claiming its protection when in it. The article, to this end, requires all officers, not only to deliver over the accused, on proper demand, but also to render aid and assistance in apprehending and securing such person, in case he escapes the military and is not in their possession to deliver over. The language is not, that in case the soldier is accused of a crime, that the military shall arrest him and then deliver him over, but that the military shall "be aiding and assisting to the officers of justice in apprehending and securing the person so accused." If it had been the purpose and intent of the law that the primary jurisdiction should be exclusively with the military, it would have provided that when the offense had been committed and the person so accused had so escaped as that the military officer could not deliver him over upon application, that the military officers should cause his arrest and delivery over. But on the contrary, the article completely negatives the idea that the military is to take primary jurisdiction in his arrest and expressly provides that the civil authorities shall be principal actors in the arrest and that the military shall aid and assist in such arrest, when applied therefor.

The accused in this case was not at the time of the commission of the alleged offense in the actual custody or control of any military officer or command, but he was at large on furlough. Then it was not in the power of any officer to deliver him over on application; and the most that could be required by the civil authorities, or done by the military under article 33 (as above), would have been the requiring and rendering of their aid and assistance to the civil authorities in the arrest of the accused. But it so happened in this case that the civil authorities neither requested nor needed such aid or assistance, the arrest being made promptly without it. Can it be said, then, that the civil tribunal has no rightful jurisdiction, because the arrest was made without the request or necessity for military aid or assistance? think not.

I have no occasion in this case to differ in the least from the doctrine laid down by the Supreme Court of the United States in Ableman. v. Booth, and United States v. Booth, 21 How. 506, 16 L. Ed. 169, where it is said, that "the powers 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, or a State court, as if the line of division was traced by landmarks and monuments visible to the eye." 21 How. 516, 16 L. Ed. 169.

Following this doctrine, I should have no hesitation in holding that neither a sheriff or any other State officer would have the right to go to a company or regiment or within the military lines or command of any military officer, and by virtue of a State process to arrest any officer or soldier within such military control for an offense committed, even outside of any military district; and because such officer has not the legal right to make arrests in such cases, the article of war relied upon in this case was adopted, whereby it becomes the duty of the civil officer to stop at the boundary line between the two jurisdictions, and there demand of the military officers the delivery of the accused, if in their jurisdiction, custody or control; but if the accused has fled and is not within the actual control of the military, the State officer has not yet reached his boundary line and may proceed and make the arrest alone, if he can, but if he cannot, he may call for the assistance of the military authorities and they are bound to render it.

While in the decision of this case, I am bound to look to the law as it is, and am not permitted to be influenced by considerations of public policy, which might demand legislative interference; yet, a doubtful construction of a statute may be rendered less doubtful by reference to the effect which must follow a different construction. If the construction contended for by the counsel for the relator is correct, it must follow that any civil arrest might be legal, or illegal, as it should ultimately be developed, whether the accused was a member of any military company in the United States service. If he was a member of any company or regiment, although absent from such service on furlough, then he is exempt from arrest, until, at least, the officer having the civil process can send a proper military officer for his delivery over. Such construction would result in great inconvenience, to say the least, and would, in a very large majority of heinous offenses, amount, by the opportunity for escape, to immunity for crime. While. the true construction, it seems to me, is, that where the accused is in the custody or control of a military officer, an application should be made for his delivery; but if he is absent from service or control, either by furlough or escape, there is then no infringement of the military jurisdiction to pursue and arrest him with or without military assistance. Again, the accused in this case is charged with one of the highest offenses known to the law; and it being an offense against the civil authorities, committed when temporarily out of the

military service, and when not in the discharge of any military duty, he is not only liable to the civil penalties, but is entitled to the constitutional guarantees in relation to the manner of his trial. He may demand his constitutional right of a trial by a jury of his peers, and of the vicinage of his alleged offense; not only may he demand these rights, but it has been repeatedly held that he cannot waive them. If he may demand a jury trial, as he clearly can, may not the State also insist upon it? So that the administration of justice shall be uniform, and not one thing to one man and another to another.

If this accused shall elect to be tried by a "drum-head court-martial" and such election is granted, while another elects to claim his constitutional guarantee of a jury trial, which cannot be refused, what becomes of the civil administration of the government? What stability or uniformity or confidence would it have? Simply none.

But, it is claimed further, that the accused in this case is bound by his furlough to report himself to Capt. Lusby, at Davenport, on the 20th inst., and unless he does so he will be a deserter and liable to the penalties for desertion, and that by reason of the restraint by the sheriff over him he is prevented from keeping his obligations of furlough. These obligations ought to exert a potent restraining influence against the commission of crime, but they are not sufficient to break the tie which binds the criminal to the penalty for his acts. That a man cannot take advantage of his own wrong is a maxim now too well settled to need any argument.

In the view which I take of this case, it becomes unnecessary to discuss further the question of supposed conflict of jurisdiction between the District Court and the federal military authorities. It is clear that the District Court has jurisdiction of the offense charged and of the person of the accused, and there was nothing in the manner of his arrest, which can oust the District Court of such jurisdiction. The accused was not under the control of any military officer when arrested, and, therefore, ought not to be placed under such control.

It is a well settled doctrine that where the United States courts have jurisdiction, concurrent with the State courts, and the State courts first take jurisdiction of the particular case, such jurisdiction becomes, for that case, exclusive, and completely ousts the jurisdiction of the Federal courts. Taylor et al. v. Carry, 20 How. 583, 15 L. Ed. 1028; Keating v. Spink, 3 Ohio St. 105, 62 Am. Dec. 214.

And, certainly, the United States military authorities cannot claim a greater right, by virtue of their jurisdiction over the persons and offenses of alleged criminals conferred by the act of Congress, approved March 3d, 1863 (12 Stat. 731, c. 75), entitled, "An act for enrolling and calling out the national forces, and for other purposes,' which are clearly also within the jurisdiction of the State courts, than is claimed by the United States judicial tribunals in like cases. In this view, then, this case being originally (if indeed it was, which may well be doubted), equally cognizable by the federal military and by the State courts, the latter having first acquired jurisdiction by the arrest of the accused, such jurisdiction became exclusive, and defeats any right of jurisdiction in this particular case on the part of the military. My personal knowledge of the defendant, his family and their his

tory, as well as his own generous and faithful military service, and his brave and unexceptionally exemplary conduct therein, during near three years, and his crowning act of devotion to his country, in his reenlistment in the veteran corps, incline me involuntarily, to the most patient investigation and favorable consideration of his case, but I can see no avenue of escape from the conclusion that he must be held for condemnation or acquittal under that civil law, against which he is charged to have offended.

The prisoner, John McRoberts, is, therefore, remanded to the custody of the officer producing him under the writ.

6. TARBLE'S CASE.

(Supreme Court of the United States, 1871. 13 Wall. 397, 20 L. Ed. 597.)

[This was a proceeding by habeas corpus under the laws of Wisconsin to determine the rightfulness of the detention of a person by an officer of the United States army under the claim that he was a duly enlisted soldier. From a decision of the Supreme Court of the State, sustaining an order of release, the United States prosecuted a writ of error before this court.]

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

The important question is thus presented, whether a State court commissioner has jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers into the military service of the United States, and to discharge them from such service when, in his judgment, their enlistment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus: Whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that government. For it is evident, if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the court commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to persons employed in any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of that authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the State. It may even reach to parties imprisoned under sentence of the National courts, after regular indictment, trial, and conviction, for offences against the laws of the United States. As we read the opinion of the Supreme Court of Wisconsin in this case, this is the claim of authority asserted by that tribunal for itself and for the judicial officers of that State. It does, indeed, disclaim any right of either to interfere with