In Coleman v. Tennessee13 the court say: "We do not call in question the correctness of the general doctrine . . . that the cial officers of that State. It does, indeed, disclaim any right of either to interfere with parties in custody, under judicial sentence, when the National Court pronouncing sentence had jurisdiction to try and punish the offenders; but it asserts, at the same time, for itself and for each of those officers, the right to determine, upon habeas corpus, in all cases, whether that court ever had such jurisdiction."

After referring to the position taken by the Supreme Court in Ableman v. Booth (21 How. 506; 16 L. ed. 169) Justice Field continues:

"Among the powers assigned to the National Government, is the power ' to raise and support armies' and the power ' to provide for the government and regulation of the land and naval forces.' The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any state authority, how the armies shall be raised; whether by voluntary enlistment or forced draft; the age at which the soldier shall be received, and the period for which he shall be taken; the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they arc raised, define what shall constitute military offenses, and prescribe their punishment. No interference with the execution of this power of the National Government of its armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. Probably in every county and city in the several States there are one or more officers authorized by law to issue writs of habeas corpus, on behalf of persons alleged to be illegally restrained of their liberty; and if soldiers could be taken from the army of the United States and the validity of their enlistment inquired into by any one of these officers, such proceeding could be taken by all of them and no movement could be made by the national troops without their commanders being subject to constant annoyance and embarrassment from this source. The experience of the late rebellion has shewn us that, in times of great popular excitement, there may be found in every State large numbers ready and anxious to embarrass the operations of the Government and easily persuaded to believe every step, taken for the enforcement of its authority. illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service in the hands of the parties thus disposed. might be used, and often would be used, to the great detriment of the public service. In many exigencies the measures of the National Government might in this way be entirely bereft of their efficacy and value. An appeal in such cases to this court, to correct the erroneous action of these officers, would afford no adequate remedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a state officer, through the same act may, in some instances, be an offense against two governments, and that the transgressor may be held liable to punishment by both when the punishment is of such a character that it can be twice inflicted, or by either of the two governments if the punishment, from its nature, can be only once suffered. It may well be that the satisfaction which the transgressor makes for the violated law of the United States is no atonement for the violated law of Tennessee,"

It is clear that there is here opportunity for conflict between the military and civil powers. Congress, however, has provided against these contingencies by giving the precedence in such cases to the civil courts. The 59th Article of War declares: "When any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of the United States, which is punishable by the laws of the land, the commandhighest tribunal of the State, to this court for review, would necessarily occupy years, and in the meantime, where the soldiers were discharged, the mischief would be accomplished. It is manifest that the powers of the National Government could not be exercised with energy and efficiency at all times, if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty."

Chief Justice Chase, dissenting, said:

"I cannot concur in the opinion just read. I have no doubt of the right of a state court to inquire into the jurisdiction of a federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.

"I have still less doubt, if possible, that a writ of habeas corpus may issue from a state court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the United Mates. The state court may err; and if it does, the error may be corrected here. The mode has been prescribed and should be followed.

"To deny the right of state courts to issue the writ, or. what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases, and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed or the people who adopted the Constitution. That instrument expressly declares 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.'"

13 97 U. S. 509; 24 L. ed. 1118.

ing officer and the officers of the regiment, troop, battery, company and detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or on behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him in order to bring him to trial. If upon such obligation any officer refuses or wilfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service."

This article has been interpreted a number of times by the opinions of the Judge-Advocate-General of the United States, and the following principles laid down.

The article includes offenses committed by soldiers against municipal ordinances or by-laws. But it applies only to criminal charges. It does not extend to subpoenas summoning soldiers as witnesses in the civil courts though, as a matter of comity, commanding officers will always give their men permission to obey such mandates.

The 59th Article refers only to soldiers within the immediate control of the military authorities. Soldiers absent on leave or furlough may be arrested like any other citizens. It docs include, however, offenses committed by soldiers before they came under the orders of the particular officer upon whom the demand by the civil authorities is made - even offenses committed by the soldier before enlistment. It does not apply to civilians resident or employed upon military premises. These may be summarily seized by the civil authorities, though comity requires that even in such cases notice be given to the commanding officer.

The two classes of tribunals should take care not to come into conflict in the performance of their duties. If an act committed by a soldier is an offense against both the civil and the military law, that authority which first assumes jurisdiction over him retains it until the end, and the other should await the results of its operations and judgment. Thus, the 59th Article does not, in general, require the surrender to the civil authorities of a soldier under confinement by order of a court martial. Likewise a soldier released on bail by a civil court should not be tried by a court martial unless this can be done and punishment inflicted in such a manner as not to interfere with the proceedings in the civil court. But when sentence is completed in one court, the prisoner is then liable in the other, and his former trial and conviction is no defense.

Finally the 59th Article does not apply in time of war except in the discretion of the commanding officer upon whom demand is made. As a matter of fact, however, it may be noted that during the Spanish-American War, in 1898, an officer in the United States volunteers was actually given up to the civil authorities upon a charge of forgery.