Ex parte Kelly , 37 Ala. 474 ( 1861 )

A. J. WALKER, C. J.

We think that, al this■ time, the application, for the habeas corpus in this case appertains to the jurisdiction of. the district court, of the Confederate States of America;. and that guided by the decision in Ableman v. Booth, (21 How. 506,) which we recognize as an.able and correct exposition of the law, we have no authority to interfere in the matter. We state, briefly, the reasons that lead us to that conclusion.

The ordinance of the convention'.of the State of Alabama, confemng~the judicial power of- the courts of the United States in -this State upon .the" State -courts, was limited 'in its operation 'to the time when the congress of the Confederate .States should otherwise dispose of the jurisdiction.' The constitution of the provisional government, in its third article, bestows that jurisdiction upon the district courts ; and bestows upon the congress of the Confederate States power to make laws for the transfer,of causes, pending in the courts of the United‘States, -to the courts of the Confederacy;-and also for-the execution-of the orders, decrees and judgments theretofore rendered by the courts of the United States. Section fifty of the act of the provisional congress, >to establish -the courts of vfche Confederate States, adopted March 16th, 1861, provides, that no person-now under .arrest, or in custody, upon any criminal charge'Or-of[ense,'on process issued from the courts of the United States, shall'be released by reason of the dissolution of the Union,; but he-shall continue under arrest, or in custody, until discharged by due course-of law. The State of Virginia is now a member of the Confederacy; and an act of congress, approved 9t-h February, 1861, continues in force all laws of the United States which were in use in the Confederate States of America on the first day of November last, and not inconsistent with -the constitution of the Confederate States.

In view of the constitutional and legislative provisions above stated, we are not prepared to decide, that the judge of the district court, is without authority to transmit the prisoners to the proper couii in Virginia for trial, as might have been done under the laws of the .United States; if the Union bad not been dissolved. — Brigh'tley’s Digest, p. 90. At all events, we feel entirely clear in-the opinion, that the question of the prisoners’ right to -a discharge is a matter now appertaining to the jurisdiction • of fhe district court of the Confederate States; and it Would be improper for us, at this time, to grant to the prisoners any remedial process.

Motion refused.