[510]

challenges the correctness of that judgment. | premises in question to Walker by Shepherd,

Messrs. Wm. F. Mattingly and Andrew
C. Bradley, for plaintiff in error:
Under the circumstances of the case Walker
became the principal debtor, and Shepherd the
surety for the payment of the note; and the ex-
tension for a detinite time for a valid considera-
tion, without Shepherd e consent, released him
from all liability on the note.

subject to the incumbrance created by the deed
of trust, Walker became bound to May as prin-
cipal debtor, and Shepherd became his surety.
We are of opinion that the conveyance of the
premises to Walker did not subject him to any
liability to May whatever. To raise such a
liability as is contended for by Shepherd there
must be words in the deed of conveyance from
Jones, Mort. 749–742; Millerd v. Thorn, 56 which, by fair import, an agreement to pay the
N. Y. 406; Colgrove v. Tallman, 67 N. Y. 96; debt can be inferred. This was expressly held
Oakeley v. Pasheller, 10 Bligh, N. R. 548, 580, in Elliott v. Sackett, 108 U. S. 132 [Bk. 27, L.
581; Metz v. Todd, 36 Mich. 473; Calvo v. Da ed. 678], where Mr. Justice Blatchford, in de-
vics, 73 N. Y. 211; George v. Andrews, 60 Md. livering the judgment of this court, said: "An
agreement merely to take land, subject to a
Formal words need not be used to show that specified incumbrance, is not an agreement to
the purchaser of mortgaged premises assumed assume and pay the incumbrance. The grantee
the payment of the mortgage. The assumption of an equity of redemption, without words in
may be established by circumstances, and a the grant importing in some form that he as-
parol or verbal promise is sufficient.
sumes the payment, does not bind himself per-
Jones, Mort. 760-762; Moore's Appeal, 88 Pa.sonally to pay the debt. There must be words
450; Bolles v. Beach, 2 Zab. 680; Drury v. Tre-importing that he will pay the debt to make him
mont Imp. Co. 13 Allen, 168; Brewer v. Dyer, 7
Cush. 337.

26.

In this case, under his assumed relations to the debt, Walker became liable upon it to suit at law by May.

personally liable.' To the same effect see Bel-
mont v. Coman, 22 N. Y. 438; Fisk v. Tolman,
124 Mass. 254; Hay v. Brownshall, 4 C. E. Green,
78; Fowler v. Fay, 62 Ill. 375. There are no
such words in the deed made by the plaintiff

Brewer v. Dyer, 7 Cush. 337; Barker v. Buck-in error to Walker.
lin, 2 Den. 45; Lawrence v. Fox, 20 N. Y. 268;
Burr v. Beers, 24 N. Y. 178; Ross v. Kennison,
38 Iowa, 396; Crumbaugh v. Kugler, 3 Ohio St.
549; Thompson v. Thompson, 4 Ohio St. 333.
The note bore 10 per cent interest until paid,
and its extension at the same rate of interest, for
Walker, was for a sufficient consideration, and
binding.

German Savings Ass'n v. Helmrick, 57 Mo.
101; Stilwell v. Aaron, 69 Mo. 539; McComb v.
Kittredge, 14 Ohio, 348; Wood v. Newkirk, 15
Ohio St. 298; Fawcett v. Freshwater, 31 Ohio St.
637; Fay v. Tower, 58 Wis. 286.

The deed of trust prescribed that the terms of sale shall be the amount of the note and expenses of sale in cash, and the plaintiff is estopped to say that the note is not paid.

Fitch v. Baldwin, 17 Johns. 161, 166; Free-
man v. Auld, 44 N. Y. 50; Dundas v. Hitch-
cock, 12 How. 256 (53 U. S. bk. 13, L. ed. 978).
He cannot hold the property and say that the
note is not paid.

Bigelow, Estop. 503, 504, et seq.; Breeding v.
Stamper, 18 B. Mon. 175; Phillips v. Rogers, 12
Met. 405; Horton v. Davis, 26 N. Y. 495.
Mr. Andrew B. Duvall, for defendant in

The first contention of the plaintiff in error is, that by reason of the transactions stated in the bill of exceptions, Walker became the principal debtor of May, and Shepherd became his surety, and as May, upon a valid contract with Walker, extended the time for the payment of the note without the consent of Shepherd, the latter was thereby discharged.

The plaintiff in error sought upon the trial to give effect to this contention by asking the court to direct the jury to render a verdict in his favor. The court having refused to do this, the refusal is now assigned for error.

We have under this assignment of error to decide whether, by the mere conveyance of the

Neither is there any other sufficient evidence of any agreement between Walker and Shepherd, whereby the former undertook to pay the debt of the latter to May. The remark made by Walker to May, when he asked to have the time [511] for the payment of the note extended, that "he had it to pay," falls far short of showing any such agreement. As he had bought the property, subject to the incumbrance of the deed of trust, for the consideration of $30,000, which, as appears by the deed to him, he had paid to Shepherd, he might well say that he had the incumbrance to pay without admitting or meaning that he had become personally liable to Shepherd to pay it. His words may be fairly construed to mean that he had the incumbrance to pay or would have to lose the property on which he had already paid $30,000 of the purchase money. But, even if Walker had said to May that he was liable for the debt, his admission would not have been binding on May so as to establish the fact without other proof. And if Walker had expressly promised May to pay the debt, that would not, without the assent of May, have converted Shepherd from a principal debtor into a surety merely. Cucullu v. Hernandez, 103 U. S. 105 [Bk. 26, L. ed. 322]; Rey v. Simpson, 22 How. 341 [63 U. S. bk. 16, L. ed. 260]. The only way in which Walker could become the principal debtor of May, and Shepherd, the surety, was by the mutual agreement of all three. There is no proof of any such agreement. It follows that, as the relation of principal and surety did not exist between Walker and Shepherd, the latter was not discharged from his liability to May by the contract of May with Walker to extend the time for the payment of the money due on Shepherd's note. But even if it had been shown that Shepherd had become the surety of Walker, it was incumbent on the former to show as a part of his defense that the indulgence given by May to Walker was without his assent. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201 [39 U. S. bk. 10, L. ed. 419]; Bangs v. Strong, 7 Hill, 250;

[512]

Messrs. H. G. Siebert and R. M. Swain, for Kurtz, the petitioner.

Messrs. Alfred Clarke and S. W. San

Mr. Justice Gray delivered the opinion of

8, 1885, by and returnable before a judge of
the Superior Court of the City and County of
San Francisco in the State of California, ad-
dressed to John Moffitt and T. W. Fields, citi-
zens of that State, upon the petition of Stephen
Kurtz, a citizen of Pennsylvania, alleging that
he was by them unlawfully imprisoned and re-
strained of his liberty, inasmuch as they had
arrested him as a deserter from the Army of
the United States, and had no warrant or au-
thority to arrest him, and were not officers of
the United States.

S. C. 42 Am. Dec. 64; Cox v. Mobile, etc. R. R. | California; and to the Circuit Court of the
Co. 37 Ala. 323. There was no proof of want United States for the District of California.
of assent. The defense therefore failed.
The history and facts appear in the opinion
It is next contended by the plaintiff in error of the court.
that May is estopped to deny that the note sued
on is not paid in full, because the deed of con-
veyance made to him by the trustees recites
that the property was sold to him in accord-derson, for respondents.
ance with the terms of the deed of trust, and
the deed of trust declared that the terms of sale
should be the amount due on the note of Shep-the court:
herd, and the expenses of sale in cash, and A writ of habeas corpus was issued on April
the balance on a credit of twelve and eighteen
months. This contention is based on the theory
that the clause of the deed of trust executed by
Shepherd, prescribing the terms of sale, and
which merely showed his expectation that the
property would bring, at least, the amount of
the note and expenses of sale, estopped May
from denying that the property would, and ac-
tually did, bring that amount. There is no
estoppel. The proposition amounts to this, that
when a mortgagor represents to his mortgagee
that the property mortgaged is sufficient security
for the debt, and the mortgagee, relying upon
the representation, accepts the security, and it
turns out that the proceeds of the mortgaged
property are insufficient to pay the debt, he is
estopped to deny that his debt is paid. The
statement of the proposition is its answer. The
authorities referred to upon this contention* by
counsel for Shepherd are cited to sustain the
proposition, that a person who accepts a deed
of conveyance is estopped to deny recitals
therein contained. But as there is no recital in
the deed that May had agreed that the property
should bring a sum sufficient to pay his note, he
is not estopped to deny that the note is paid.
Judgment affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. *Fitch v. Baldwin, 17 Johns. 161; Freeman v. Auld, 44 N. Y. 50; Dundas v. Hitchcock, 12 How. 256 ([53 U.S. bk. 13 L. ed. 978.]

Moffitt and Fields, at the time of entering their appearance in that court, filed a petition to remove the case into the Circuit Court of the United States, because the parties were citizens of different States, and because the suit involveċ a question arising under the Constitution and laws of the United States, to wit: the question whether a person who is not an officer of the United States has authority to arrest a deserter from the Army of the United States. The court ordered the case to be so removed.

Moffitt and Fields thereupon signed and filed in the circuit court the following return:

"Now come the respondents and make this their return to the writ of habeas corpus hereir and show that respondent J. Moffitt is a regular police officer of the City and County of San Francisco, and respondent T. W. Fields is a special police officer of said city and county: and being such officers as aforesaid, they arrested the petitioner, Stephen Kurtz, in the City and County of San Francisco, by the authority of the United States, in this, to wit: that said Stephen Kurtz, under the name of Stephen Noll, on the 29th day of May, 1876, at Cleveland in the State of Ohio, enlisted in the Army of the United States for the term of five years, and on the 17th day of March, 1879, he being a soldier attached to Co. D of the 21st Regiment of Infantry of the Army of the United States, stationed at Vancouver Barracks, in the Territory of Washington, deserted from the Army of the United States; and your respondents hold said petitioner for the purpose of delivering him to the military authorities of the United States to be tried according to the laws of the United States."

The circuit court, upon motion and hearing,
made an order remanding the case to the Su-
perior Court of San Francisco; and Moffitt and
Fields sued out a writ of error from this court
to reverse that order.

After the case had been so remanded, Kurtz
suggestion that the return was insufficient, and
filed in the Superior Court of San Francisco a
following reasons:
that he was entitled to be discharged, for the

"First. It appears by said return that the
defendants were not officers of the United States,

[488]

"

but are police officers of the municipality of | be of the value of one thousand dollars or upSan Francisco, and as such they have no au- wards, exclusive of costs.' 3 Stat. at L. 261. thority to arrest or detain the plaintiff, and as In Lee v. Lee, 8 Pet. 44 [33 U. S. bk. 8, L. such officers they have been and are prohibited ed. 860], decided in 1834, a petition to the [489] from arresting or detaining the plaintiff as a Circuit Court for the District of Columbia set deserter from the United States Army by a rule forth that the petitioners were entitled to their of the police department which was in force at freedom, and were held in slavery by the dethe time of the arrest of the plaintiff, and still fendant; he pleaded that they were not enti is in force, which rule was and is as follows: tled to their freedom as they had alleged; upon 'Police officers are prohibited from arresting that plea issue was joined, and a verdict and deserters from the United States Army or Navy judgment rendered for the defendant; and the without a warrant.' petitioners sued out a writ of error. A preliminary objection to the jurisdiction of this court was overruled, and the judgment below considered on the merits and reversed. The ground of the decision upon the question of jurisdiction appears to have been that the single matter in dispute between the parties was the freedom or slavery of the petitioners-to the petitioners, the value of their freedom, not to be estimated in money; to the defendant, claiming to be their owner, the pecuniary value of the slaves as property, which, if he had been the plaintiff in error, might have been ascertained by affidavits. 8 Pet. 48 [33 U. S. bk. 8, L. ed. 862].

[494]

Second. The desertion set up in the return is an offense against the United States, and not against the State of California, of which Commonwealth the defendants are officers, and they are, therefore, incompetent to arrest or detain the plaintiff.

Third. The desertion set up in the return is barred by article 103 of section 1342 of the Revised Statutes of the United States."

The superior court, upon a hearing, ordered the writ of habeas corpus to be dismissed and Kurtz remanded to custody, and entered judgment accordingly; and he sued out a writ of error from this court to reverse that judgment, that court being the highest court of the State in which a decision on the merits of the case could be had. See Robb's Case, 64 Cal. 431, 433 and 111 U. S. 624, 627 [Bk. 28, L. ed. 542, 543]; Barbier v. Connolly, 113 U. S. 27 [Bk. 28, L. ed. 923].

The first question to be considered is whether this case was rightly remanded to the state court, or should have been retained and decided in the Circuit Court of the United States into which it had been removed on a petition filed under the Act of March 3, 1875, ch. 137, sec. 2.

In Barry v. Mercein, 5 How. 103 [46 U. S. bk.
12, L. ed. 70], decided in 1847, this court dis-
missed for want of jurisdiction a writ of error
to reverse a judgment of the Circuit Court for
the Southern District of New York, refusing to
grant to a father a writ of habeas corpus to take
his child out of the custody of his wife who was
living apart from him. Chief Justice Taney, in
delivering the opinion, after quoting the 22d
section of the Judiciary Act of 1789, said: "In
order, therefore, to give us appellate power
under this section, the matter in dispute must
be money, or some right, the value of which in
In order to justify the removal of a case from money can be estimated and ascertained." "The
a state court into the circuit court under this words of the Act of Congress are plain and un-
Act, it is not enough that it arises under the ambiguous. They give the right of revision in
Constitution and laws of the United States, or those cases only where the rights of property
that it is between citizens of different States, are concerned, and where the matter in dispute
but it must be a "suit of a civil nature, at law has a known and certain value, which can be
or in equity, where the matter in dispute ex-proved and calculated, in the ordinary mode of
ceeds, exclusive of costs, the sum or value of
five hundred dollars.' 18 Stat. at L. 470.
A writ of habeas corpus, sued out by one ar-
rested for crime, is a civil suit or proceeding,
brought by him to assert the civil right of per-
sonal liberty, against those who are holding
him in custody as a criminal. Ex parte Tom
Tong, 108 U. Š. 556 [Bk. 27, L. ed. 826]. To
assist in determining whether it is, within the
meaning of the Act of 1875, a suit at law or
in equity where the matter in dispute exceeds
the sum or value of five hundred dollars," it
will be convenient to refer to the use and the
interpretation of like words in earlier Acts de-
fining the jurisdiction of the national courts.

a business transaction. There are no words in [496]
the law which by any just interpretation can
be held to extend the appellate jurisdiction
beyond those limits, and authorize us to take
cognizance of cases to which no test of money
value can be applied. Nor indeed is this lim-
itation upon the appellate power of this court
confined to cases like the one before us. It is
the same in judgments in criminal cases, al-
though the liberty or life of the party may de-
pend on the decision of the circuit court. And
since this court can exercise no appellate power
unless it is conferred by Act of Congress, the
writ of error in this case must be dismissed."
5 How. 120. 121 [46 U. S. bk. 12, L. ed. 77, 78].

The Judiciary Act of September 24, 1789, ch. In Pratt v. Fitzhugh, 1 Black, 271 [66 U. S.
20, sec. 22, authorized "final judgments and bk. 17, L. ed. 206], decided in 1861, this court
decrees in civil actions and suits in equity in a dismissed for want of jurisdiction a writ of
circuit court, where the matter in dispute ex- error to reverse a judgment of the Circuit
ceeds the sum or value of two thousand dollars, Court for the Northern District of New York,
exclusive of costs," to be revised by this court discharging on habeas corpus persons impris
[495] on writ of error or appeal. 1 Stat. at L. 84. oned upon an execution issued by that court di-
The Act of April 2, 1816, ch. 39, sec. 1, pro-recting the marshal to levy the amount of a de-
vided that no cause should be brought to this
court by appeal or writ of error from the Cir-
cuit Court for the District of Columbia, "un-
less the matter in dispute in such cause shall

cree for $21,581.28 out of their goods and chat-
tels, and, for want thereof, to arrest and keep
them until the moneys were paid. Mr. Justice
Nelson, in delivering the opinion, said that the

22d section of the Judiciary Act had always | United States, "where the value of the prop-
been held to mean a property value; and he dis-erty or the amount in controversy exceeds one
tinguished the case of Holmes v. Jennison, 14 thousand dollars, except that a writ of error or
Pet. 540 [39 U. S. bk. 10, L. ed. 579] which was appeal shall be allowed" to this court from the
a writ of error to reverse a judgment of the Su- decisions of the courts or judges of the Terri-
preme Court of Vermont on habeas corpus, re-tory "upon writs of habeas corpus involving [498]
manding to custody a prisoner under a warrant the question of personal freedom," clearly im-
of extradition from the Governor of that State, plies that writs of habeas corpus would not be
upon the ground that it was brought up from a included if not specially mentioned. See als
state court under the 25th section of the Ju- Potts v. Chumasero, 92 U. S. 358 [Bk. 23, L. ed.
diciary Act, in which case no value was 499]; Elgin v. Marshall, 106 U. S. 578, 580
required.
[Bk. 27, L. ed. 249]; Curtis, U. S. Courts, 65.

From this review of the statutes and decisions, the conclusion is inevitable that a jurisdiction, conferred by Congress upon any court of the United States, of suits at law or in equity in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of being valued in money; and therefore that writs of habeas corpus are not removable from a state court into a Circuit Court of the United States under the Act of March 3, 1875, ch. 137, § 2; and this case was rightly remanded to the state court.

We are then brought to a consideration of the merits of the case, as presented by the writ of error sued out by the prisoner to reverse the judgment of the state court, remanding him to custody.

The case, as shown by the record, is briefly this: Kurtz, a deserter from the Army of the United States, was, without any warrant or express authority, arrested by Moffitt and Fields, police officers of the City of San Francisco, and citizens of the State of California and of the United States, and held by them for the purpose of being delivered to the military authori ties of the United States to be tried according to the laws of the United States; and he claims immunity from being arrested for a military crime by persons not military officers of the United States, and having no express authority from the United States or from such officers to arrest him.

In DeKrafft v. Barney, 2 Black, 704 [67 U. S. bk. 17, L. ed. 350], decided in 1862, an appeal was taken from a decree of the Circuit Court for the District of Columbia, awarding the custody of a child to the father as against the divorced mother; and Lee v. Lee, above cited, was referred to as supporting the right of appeal. But this court dismissed the appeal for want of jurisdiction, Chief Justice Taney saying that the case was not distinguishable from Barry v. Mercein, above cited, and that in that case it was held that in order to give this court jurisdiction under the 22d section of the Judiciary [497] Act of 1789, the matter in dispute must be money, or some right, the value of which could be calculated and ascertained in money." The Act of February 5, 1867, ch. 28, sec. 1, conferring power upon the judges of the national courts to issue writs of habeas corpus in cases of persons restrained of their liberty in violation of the Constitution, or of any treaty or law of the United States, expressly gave an appeal to this court from the judgment of a circuit court in such cases. 14 Stat. at L. 385. Shortly after the passage of that Act, Mr. Justice Nelson refused to allow an appeal from a judgment of the Circuit Court for the Southern District of New York upon a writ of habeas corpus issued under the 14th section of the Judiciary Act of 1789, because no appeal was provided by law in the case of a habeas corpus issued under that Act, and the appeal given by the Act of 1867 was confined to cases begun under it. In re Heinrich, 5 Blatchf. C. C. 414, 427. And within two years afterwards it was determined by this court that, independently of the Act of 1867 (which was repealed by the Act of March 27, 1868, ch. 34, 15 Stat. at L. 44), this court (except in a small class of cases of commitments for acts done or omitted under alleged authority By the common law of England, neither a of a foreign government, as to which provision civil officer nor a private citizen had the right was made by the Act of August 29, 1842, ch. without a warrant to make an arrest for a 257, 5 Stat. at L. 539) had no jurisdiction by crime not committed in his presence, except in direct appeal to revise the judgments of inferior the case of felony, and then only for the pur- [499] courts in cases of habeas corpus, but could only pose of bringing the offender before a civil do so by itself issuing writs of habeas corpus and magistrate. 1 Hale, P. C. 587-590; 2 Hale, P. certiorari under the general powers conferred C. 76-81; 4 Bl. Com. 292, 293, 296; Wright v. by the Judiciary Act of 1789. Ex parte Court, 6 D. & R. 623; S. C. 4 B. & C. 596. McCardle, 6 Wall. 318 [73 U. S. bk. 18, L. ed. No crime was considered a felony which did 816], and 7 Wall. 506 [74 U. S. bk. 19, L.. ed. not occasion a total forfeiture of the offender's 2611; Ex parte Yerger, 8 Wall. 85 [75 U. S. bk. lands, or goods, or both. 4 Bl. Com. 94, 95; 19, L. ed. 332]. See also, Ex parte Royall, 112 Ex parte Wilson, 114 U. S. 417, 423 [Bk. 29, L. U. S. 181 [BK. 28, L. ed. 690]; Wales v. Whited. 89, 91]. And such a forfeiture did not folney, 114 U. S. 564 [ante, 277].

If a police officer or a private citizen has the right, without warrant or express authority, to arrest a military deserter, the right must be derived either from some rule of the law of England which has become part of our law, or from the legislation of Congress.

low upon conviction by a court-martial of a
Section 1909 of the Revised Statutes, sub-crime not punishable by the courts of common
stantially re-enacting provisions of earlier Acts, law. Co. Lit. 391 a; 1 Clode, Military Forces
and providing that writs of error and appeals of the Crown, 176.
from the final decisions of the Supreme Courts
of certain Territories shall be allowed to this
court in the same manner and under the same
regulations as from the Circuit Courts of the

By some early English statutes, which appear to have been in force down to the Revolution of 1688. desertion was made felony, punishable in the civil courts. 3 Inst. 86, 87; i Hale, P.

[500]

C. 671-680; The King v. Beal, 3 Mod. 124; 8. | commissioner of a circuit court, or by any
C. nom. The King v. Dale, 2 Shower, 511; 12
Howell's State Trials, 262, note; 4 Bl. Com.
102; Tyler v. Pomeroy, 8 Allen, 480, 487–490.
But those statutes fell into disuse after Parlia-
ment, by the Mutiny Acts, beginning with the
Statute of 1 W. & M. ch. 5, and re-enacted al-
most every year since, for the first time author-
ized mutiny and desertion to be punished at
the sentence of a court-martial in time of peace.
Lord Hardwicke, in 14 Parl. Hist. 453; 1 Clode,
Military Forces of the Crown, 19, 55, 56, 143,
154.

From 1708, the English Mutiny Acts have repeatedly, if not uniformly, contained provisions by which persons reasonably suspected of being deserters might be apprehended by a constable, and taken before a justice of the peace, and the fact of their desertion established to his satisfaction, before their surrender to the military authorities. Stat. 7 Anne, ch. 4, sec. 43, and 10 Anne, ch. 13, sec. 42; 9 Statutes of the Realm, 58, 576; Clode, Military Law, 93, 209; Tytler, Military Law, 3d ed. 200. By the recent Acts, provision is made for their apprehension by a military officer or soldier, if a constable cannot be immediately met with; and it is, at least, an open question whether a man whom a military officer causes to be apprehended as a deserter, and delivered to an officer of the guard, without having him brought before the civil magistrate, may not maintain an action against the officer who causes his arrest, although he cannot sue the officer of the guard if it is the duty of the latter under the Articles of War to receive and hold all prisoners so delivered to him by a military officer. Wolton v. Gavin, 16 Q. B. 48, 81; Wolton v. Freese, 16 Q. B. 81, note.

judge, mayor, justice of the peace or magis-
trate of any State where he may be found, "and
agreeably to the usual mode of process against
offenders in such State, and at the expense of
the United States, be arrested and imprisoned,
or bailed, as the case may be, for trial before
such court of the United States as by law has
cognizance of the offense," and that "copies of
the process shall be returned as speedily as may
be into the clerk's office of such court," man-
ifestly applies to proceedings before the civil [501]
courts only.

From the very year of the Declaration of In-
dependence, Congress has dealt with desertion
as exclusively a military crime, triable and pun-
ishable, in time of peace, as well as in time of
war, by court-martial only, and not by the
civil tribunals; the only qualification being
that since 1830 the punishment of death cannot
be awarded in time of peace. Articles of War
of September 20, 1776, sec. 6, art. 1, 2 Journals
of Congress, 347, continued in force by the
Act of September 29, 1789, ch. 25, sec. 4, 1
Stat. at L. 96; Acts of March 16, 1802, ch. 9,
sec. 18; April 10, 1806, ch. 20, art. 20; Janu-
ary 11, 1812, ch. 14, sec. 16; January 29, 1813,
ch. 16, sec. 12; 2 Stat. at L. 136, 362, 673, 796;
May 29, 1830, ch. 183; 4 Stat. at L. 418; Rev.
Stat. sec. 1342, arts. 47, 48.

The provisions of the Revised Statutes con-
cerning the trial and punishment of deserters
are as follows: By section 1342," The Armies
of the United States shall be governed by the
following rules and articles; ""and the convic-
tions mentioned therein shall be understood to
be convictions by court-martial." By article
47, any officer or soldier who deserts the service
of the United States "shall, in time of war,
It does not appear to have ever been the law suffer death, or such other punishment as a
of England that a peace officer or a private cit-court-martial may direct; and in time of peace,
izen could as such, and without any warrant
or order either from a civil magistrate or from
a military officer, lawfully arrest a deserter for
the purpose of delivering him to the military
authorities for trial by court-martial.

In the United States, the line between civil and military jurisdiction has always been maintained. The Fifth Article of Amendment of the Constitution, which declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury," expressly excepts "cases arising in the land or naval forces;" and leaves such cases subject to the rules for the government and regulation of those forces which, by the eighth section of the First Article of the Constitution, Congress is empowered to make. Courts-martial form no part of the judicial system of the United States, and their proceedings, within the limits of their jurisdiction, cannot be controlled or revised by the civil courts. Dynes v. Hoover, 20 How. 65 [61 U. S. bk. 15, L. ed. 838]; Ex parte Mason, 105 U. S. 696 [Bk. 26, L. ed, 1213]; Wales v. Whitney, 114 U. S. 564 [ante, 277]. Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal. Section 1014 of the Revised Statutes, which provides that, "For any crime or offense against the United States, the offender may, by any justice or judge of the United States,' or

any punishment, excepting death, which a
court-martial may direct ;" and by article 48,
every soldier who deserts "shall be tried by a
court-martial and punished, although the time
of his enlistment may have elapsed previous to
his being apprehended and tried." The pro-
visions of sections 1996 and 1998, which re-enact
the Act of March 3, 1865, ch. 79, sec. 21, 13
Stat. at L. 490, and subject every person de-
serting the military service of the United States
to additional penalties, namely: forfeiture of
all rights of citizenship, and disqualification to
hold any office of trust or profit, can only take
effect upon conviction by a court-martial, as
was clearly shown by Mr. Justice Strong, when
a judge of the Supreme Court of Pennsylvania,
in Huber v. Reily, 53 Pa. St. 112, and has been
uniformly held by the civil courts as well as by
the military authorities. State v. Symonds, 57
Maine, 148; Severance v. Healey, 50 N. H. 448;
Goetcheus v. Matthewson, 61 N. Y. 420; Win-
throp's Digest of Judge Advocate General's
Opinions, 225.

The Articles of War have likewise always pro-
vided that any officer or soldier who advises or
persuades any other officer or soldier to desert
the service shall be punished by court-martial.
Articles of War of September 20, 1776, sec. 6,
art. 4; Act of April 10, 1806, ch. 20, art. 23; Rev.
Stat. at L., sec. 1342, art. 51. Section 5455 of the
Revised Statutes, which re-enacts the Act of
March 3, 1863, ch. 75, sec. 24, 12 Stat. at L.

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