whose members had been deported from San Miguel County, and who intended to return, and whose return would likely be forcibly resisted. This condition alone threatened riot and bloodshed. On one side was a body of determined men of whom the plaintiff was the official head, and whose counsel and advice under the circumstances had been most likely taken. It may likewise be said that it would have also been the duty of those in authority of the military forces to have taken into custody those who occupied the position of leaders, if any, on the other side of the conflict. And beyond this, the proceedings in habeas corpus presented to the supreme court the then situation in San Miguel County, and the reason for the arrest and detention of the plaintiff up to that time. These facts under the issues were weighed and considered by that court in the light of the constitutional provision and the principles of law controlling in such emergencies. The prisoner was remanded to the custody of the defendants. This was done, and could only have been done, on the conclusion that his arrest and detention were reasonable and proper means in the suppression of the insurrection. In rendering its opinion that court, among other things, said: "To deny the militia the right to detain those whom they arrest while engaged in suppressing acts of violence, until order is restored, would lead to the most absurd results. **** His arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a continuation of the conditions which the governor, in the discharge of his official duties and in the exercise of the authority conferred by law, is endeavoring to suppress." (In re Moyer, 85 Pac. 190.) My learned predecessor, Judge Hallett, refused to discharge one Sherman Parker, on a like applica tion, while he was held by the military authorities during the same unfortunate period in the state's history, and in discharging the writ in that case, he justified the arrest and detention of the prisoner as a proper means of suppressing the insurrection. It follows that the facts disclosed do not show an abuse of power on the part of the defendants, and, hence, there was no violation of the prohibitions found in the Fourteenth Amendment. It results that this court has no jurisdiction. The demurrer ought to be sustained. It is so ordered. Ex Parte BENEDICT District Court, N. D. New York, Sept. 30, 1862 (On habeas corpus. Application for the discharge of Judson D. Benedict from the custody of Edward I. Chase, United States marshal. The prisoner being without the jurisdiction at the time of the return to the writ, the court declined to order his discharge from custody. An application was also made to punish the marshal for contempt in disobeying the writ. Application refused.) HALL, District Judge. The application for the writ of habeas corpus, in this case, was made while I was engaged in other duties; and although I retained the petition, and gave the questions presented a hasty examination, before I allowed the writ, I had no time to prepare an opinion upon the questions which then occurred to me as necessary to be considered before granting the petitioner's application. I therefore simply made a note of the authorities examined; and as the case is one of importance, I shall now state my opinion upon the questions considered at the time the petition for the habeas corpus was under consideration; and refer to the authorities then examined and some others, which appear to me to require the exercise of the jurisdiction and authority invoked by the petitioner. The act of Congress of September 24, 1789, (1 Stat. 8k, $14,) the judiciary act, declares that either of the justices of the Supreme Court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment; provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by color of authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. It appears by the petition and affidavits annexed, that the petitioner is confined in goal, and the only cause of his detention rendered by the goaler is a paper delivered to him by A. G. Stevens, deputy U. S. marshal, of which the following is a copy: "Marshal's Office, Buffalo, September 2, 1862. David M. Grant will take from Fort Porter, Thomas Commings, James Parker, Antoine Quantent, Noah B. Clarke and Jared Benedict, prisoners confined there, committed under orders of the War Department, and remove them to the Erie county jail for safe keeping, and there detain them until further order; and the sheriff or jailer of said county will keep them until further order, in said jail. (signed) A. G. Stevens, U. S. Dep. Marshal. To Col. E. P. Chapin, and the sheriff and jailer of Erie county." From this it clearly appears that the petitioner is in custody by color of the authority of the United States, under the deputy marshal, who is an officer, deriving his authority as such, from the United States. The petition further shows that when the deputy marshal was applied to by the counsel for the petitioner, and asked "if he arrested the petitioner by virtue of an order, process or paper," that officer said he did not, but showed the counsel a slip cut from a newspaper, purporting to contain a copy of an order of the War Department, in the following words: "War Department, Washington, August 8th, 1862. Ordered: First-That all United States marshals and superintendents, and chiefs of police of any town, city or district, be and they are hereby authorized and directed to arrest and imprison any person or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving comfort and aid to the enemy, or in any other disloyal practice against the United States. Second-That immediate report be made to Major L. S. Turner, Judge-advocate, in order that such persons may be tried before a military commission. Third-That the expenses of such arrest and imprisonment will be certified to the chief clerk of the War Department, for settlement and payment. (signed) Edwin M. Stanton, Secretary of War." The affidavit of the counsel also states that the deputy marshal at the same time said "that the printed slip was his only authority for the arrest of said Benedict." The petitioner states in his petition that he "is not committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, or by virtue of the final judgment or decree of any court, or by virtue of any process of any kind or description; that he has neither by act or speech been disloyal to the constitution or laws of the United States, or been guilty of any violation of any order of the War Department, or of the President of the United States, or been guilty of any offense or act subjecting him to arrest;" and this petition is verified by the oath of the petitioner. On the case thus made by the petitioner, I should have granted a habeas corpus at once, on the first reading of his petition, and the accompanying affidavits, had I not seen a newspaper copy of an order of the War Department assuming to suspend, in certain cases, the privileges of the writ of habeas corpus. This order bears the same date as that referred to by the deputy marshal, and is in the following words: "War Department, Washington, August 8, 1862. Order to prevent evasion of military duty and for |