of the state to allow the writ under the penalty of $1,000 unless it shall appear from the petition therefor, or from the documents annexed, that the party applying for such writ is, by the provision of the statute, prohibited from prosecuting such writs. And the rule which provides fully for issuing such writs also contains the following sections:

"Sec. 61. Any one having in his custody, or in his power, any person, who, by the provision of this article, would be entitled to a writ of habeas corpus or certiorari, to inquire into the causes of his detention, who shall, with intent to elude the service of any such writ, or to avoid the effect thereof transfer any such prisoner to the custody or place him under the power or control of another, or conceal him, or change the place of his confinement, shall be deemed guilty of a misdemeanor.

"Sec. 62. Any one having in his custody or under his power, any person for whose relief a writ of habeas corpus or certiorari shall have been issued, pursuant to the provisions of this article, who with intent to elude the service of such writ, or to avoid the effect thereof, shall transfer such prisoner to the custody or place him under the power or control of another, or conceal him, or change the place of his confinement, shall be deemed guilty of a misdemeanor.

"Sec. 63. Every person who shall knowingly aid or assist in the violation of either of the two last preceding sections shall be deemed guilty of a misdemeanor.

"Sec. 64. Every person convicted of any offence under either of the last four sections, shall be punished by fine or imprisonment, or both, in the discretion of the court in which he shall be convicted, but such fine shall not exceed $1,000, nor such imprisonment six months." 2 Rev. St. pp. 571, 572.

It is further provided by the statutes of this

state (Rev. St., 4th Ed. p. 587) as follows:

"Sec. 30. Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other with intent either

- 1. To cause such other person to be secretly confined or imprisoned in this state against his will; or, 2. To cause any such person to be sent out of this state against his will; or,3. To cause such person to be sold as a slave, or in any way held to service against his will, shall, upon conviction, be punished by imprisonment in a state prison not to exceed ten years.

"Sec. 31. Every offence prohibited in the last section may be tried either in the county in which the same may have been committed, or in any county through which any person so kidnapped or confined, shall have been taken, while under such confinement."

And in addition to these provisions of the New York statutes, it must also be remembered that the prisoner has been taken to Washington, and that in December next the questions in regard to the legality of his arrest, imprisonment, and deportation may be inquired into by the highest tribunal of the United States, in his case or that of some other prisoner in like condition. To the decisions of that august tribunal all will cheerfully submit; and, if I am wrong in the view I have taken of the questions involved in the arrest and imprisonment of Benedict, my error will be corrected.

I have already intimated that there was doubt in regard to my power legally to punish the marshal for a contempt in this case, and I propose now to state very briefly the grounds upon which that doubt is based. Process issued by the courts and judicial officers of the United States is issued in the name of the "President of the United States;" and all process authorizing the arrest or commitment of any

person is by law and custom directed to the marshal of the district for the execution and return, except in the cases where other provisions had been made by the act of congress. In ordinary cases, then, process issued by me in proceedings for a contempt would commence thus: "The President of the United States of America, to the marshal of the Northern District of New York-Greeting: You are hereby commanded that you take," &c. And thus the process of the law, committing the marshal for a contempt, would run in the name and authority of the President, and would direct the marshal to commit himself to prison. Such a process would surely be practically, and would probably be legally, ineffective for that purpose; and congress has not, so far as I can ascertain, made any provision for authorizing a judge in chambers to issue process in a different form, in a case like that now before me. It is true, the judiciary act provides (section 28) that, "in all cases wherein the marshal or his deputy is a party, the writs and precepts therein shall be directed to such disinterested person as the court or a judge thereof may appoint, and the person so appointed is hereby authorized to execute and return the same,' (Act Sept. 24, 1789; 1 Stat. 87;) but this provision appears to extend only to process issued in causes in court. At all events, it is not clearly applicable to such a case as this; and the power of a judge to direct process to an unofficial person, without express authority by statute, is too doubtful to justify me in issuing any such process, or asking any unofficial person (or if any one would undertake the duty) to attempt to execute it. Such a process, in the hands of any party willing to take the risk of its execution, would probably be resisted as unlawful; and a breach of the peace would be the inevitable result of any attempt to execute any such process. Nojudge should do

anything tending to such a result where his duty permits him to avoid doing it.

For the reasons I have now given, I shall decline issuing process against the marshal for his disobedience to the writ of habeas corpus.

EX PARTE FIELD

(5 Blatchf. 63.)

Circuit Court, D. Vermont. Oct. 7, 1862

Federal Case, No. 4,761

This was a hearing on a writ of habeas corpus, issued on the petition of Anson Field, directed to C. C. P. Baldwin, marshal for the United States for the district of Vermont, and Noble B. Flanagan, jailer of Chittenden county, Vermont, commanding them to produce the body of said Field. The petition for the writ set forth, that the petitioner resided in Jericho, in Chittenden county; that he was illegally imprisoned in the common jail of the county, by the marshal; that the jailer of said county held him by the order of the marshal; that the marshal held him by some pretended order of the President of the United States; and that he was not held by force of any process of any court of the state, or of the United States. On the return day of the writ, the jailer produced the body of the petitioner and made a verbal return to the writ, to the effect, that the petitioner and two other persons were brought to the jail by the said marshal, who directed the jailer to commit and hold them until further orders; and that the marshal presented no process or warrant, but said that he had arrested them under some general order from the War Department. It not appearing that the said marshal had received notice of the issuing of the writ, the court adjourned the hearing, and directed that in the meantime the jailer should hold the petitioner in custody. On the adjourned day, the marshal and jailer appeared, with their counsel, but without the petitioner, and made the following return to the writ: