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2d Rev. Stat. p. 564; and sect. 46 is as follows: "If any Court or officer authorized by the provisions of this article to grant writs of habeas corpus or certiorari shall refuse to grant such writ, when legally applied for, every member of such Court who shall have assented to such refusal, and every such officer, shall severally forfeit to the parties aggrieved one thousand dollars."

I think it was the intention of the Legislature in these provi sions to preclude any pretence for delay or evasion in granting the writ, for the double purpose of providing for a prompt examination in all cases of the grounds of imprisonment of any person restrained of his liberty, and of having such examination in such form as to allow a record to be made up for review in a superior tribunal, that no man should be concluded by the decision of any single Judge upon the question of the legality of his imprisonment.

Upon the return of the writs issued in these cases, the persons upon whom the same were served having omitted and refused to obey the same by producing the party named in such writs respectively, claimed to be excused from such neglect or refusal, upon returns in each of said cases similar to that made in the case of Jordan, which is in substance as follows:

1st. That the person making such returns upon whom such writ was served was a military officer in the service of the United States, at Rochester, and engaged in organizing a regiment of volunteers in such service.

2d. That said Jordan, the party named in said writ, was detained as an enlisted soldier in the service of the United States, and was so detained and held at the time of the service of said writ.

3d. That the production of said Jordan would be inconsistent with and in violation of his duty as a military officer under the orders of his superior officer.

4th. That the said Jordan is held under the authority of the United States, and for this reason, and without intending any disrespect to the honorable Judge who issued the process, the said returning officer declined to produce said Jordan or to subject him to the process of the Court.

This return I held and consider insufficient. The person upon

whom a writ of habeas corpus is served must obey the writ by producing the body and making return of the cause of the impressment or detention, or show a "sufficient excuse for such refusal or neglect." This return was obviously made to present such excuse. If no sufficient excuse is shown, the Judge must issue an attachment against the party refusing to produce the body, which was moved for in these cases, and which I held must issue unless the returns were amended.

It is the duty which State Courts owe to the citizens of the State, to see to it, when their judicial powers are invoked for that purpose, that no one is unlawfully imprisoned or restrained of his liberty. Every citizen of adult age has the absolute right to be free from any restraint upon his person, and any person claiming a right to exercise restraint over another must, when questioned in respect to the exercise of such power by judicial proceedings, show a lawful ground or authority for such restraint. He must show that it is under color of law and of an apparent legal right.

The petition in each of these cases states that the party restrained of his liberty was an infant under the age of eighteen years. In the second section of an Act of Congress, chapter 25, passed February 13, 1862, it is declared as follows: "That hereafter no person under the age of eighteen years shall be mustered into the United States service, and the oath of enlistment taken by the recruit shall be conclusive as to his age.'

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Assuming the facts of the petitions to be true, the return in these cases shows no apparent right to hold Jordan and the other parties in question as enlisted soldiers in the United States service.

These returns were doubtless made under the authority of the case of Ableman vs. Booth, 21 How. U. S. 506, in which Judge TANEY used the language following: "But after the return is made, and the State Judge or Court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further."

The State Judge, in my opinion, cannot be judicially apprise! that the party is in custody under the authority of the United States, until, by a proper return, the facts are stated or presented

for his consideration, which, upon their face, show a case of apparent lawful detention or imprisonment under the authority of the United States. The mere general assertion as made in the return in these cases that the parties were held under the authority of the United States is not sufficient. Almost any wrong or outrage might be covered up by such a return. It would substitute a military, or ministerial, or other officer of the General Government, or any private person claiming to act in its behalf in the place of the Judiciary Department, to judge of the character and rightfulness of his authority. This clearly cannot be allowed. Every person is amenable to the law of the land, as interpreted by the Courts, State or National.

In accordance with these views and upon leave granted, the respondents in these several cases amended their returns as follows respectively:

"5th. That the said Jordan was regularly enlisted into the service of the United States, according to the rules and regulations of the recruiting service for enlisting volunteers, by his signing the paper, statement, or declaration directed for recruits to sign, and by his taking the oath required for recruits to take; and that the paper hereto annexed, marked A, is one of the triplicate enlistments in this case; that the oath was regularly administered by an officer authorized to administer oaths, and that he was regularly examined by the surgeon appointed for that purpose."

DECLARATION OF RECRUIT.

I, James Jordan, desiring to volunteer as a soldier in the army of the United States, for the term of three years, do declare that I am twenty-one years and

months of age; that I have never been discharged from the United States service on account of disability or by sentence of a court-martial, or by order before the expiration of a term of enlistment; and I know of no impediment to ny serving honestly and faithfully as a soldier for three years.

Given at Rochester, N. Y., the 4th day of July, 1863.

Witness: F. WARNER.

JAMES JORDAN.

VOLUNTEER ENLISTMENT.

STATE OF NEW YORK,

CITY OF ROCHESTER.

I, James Jordan, born in the town of Pittsford, in the State of New York, aged

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twenty-one years, and by occupation a farmer, do hereby acknowledge to have volunteered this fourth day of July, 1863, to serve as a soldier in the army of the United States of America, for the period of three years, unless sooner discharged by proper authority; do also agree to accept such bounty, pay, rations, and clothing, as are, or may be, established by law for volunteers. And I, James Jordan, do solemnly swear, that I will bear true faith and allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whomsoever; and that I will observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the Rules and Articles of War.

JAMES JORDAN.

Sworn and subscribed to, at Rochester, this 4th day of July, 1863, before J. M. Bardwell, Commissioner of Deeds.

I certify, on honor, that I have carefully examined the above-named volunteer, agreeably to the General Regulations of the Army, and that in my opinion he is free from all bodily defects and mental infirmity, which would, in any way, disqualify him from performing the duties of a soldier.

H. MULLEN,

Surgeon 13th N. Y. V. Artillery, Examining Surgeon.

I certify, on honor, that I have minutely inspected the volunteer, previously to his enlistment, and that he was entirely sober when enlisted; that, to the best of my judgment and belief, he is of lawful age; and that, in accepting him as duly qualified to perform the duties of an able-bodied soldier, I have strictly observed the Regulations which govern the recruiting service. This soldier has blue eyes, brown hair, light complexion, is five feet eight inches high.

JOHN WEED,

Captain 13th Regiment of N. Y. Artillery Vols.,
Recruiting Officer.

The return of the respondents in these cases, thus amended, I held and consider, presented a case of imprisonment under the authority of the United States-primâ facie, lawful. Upon the face of these enlistment papers, the United States officers authorized to make enlistments were clearly entitled to receive the enlistment of the said Jordan, and to muster him into the United States service. He distinctly declares that he is twenty-one years of age, and in the recital to the oath reasserts this declaration, and, for aught that appears on the face of these papers, he was lawfully enlisted, and is legally held as a soldier in the volunteer service. As the office of the writ of habeas corpus under the sta tute is primarily to discharge the party from unlawful imprisonment, this recruit himself cannot be discharged under this writ,

because he is not unlawfully restrained of his liberty. He has voluntarily enlisted and subjected himself to the restraint of military rule. He is not restrained against his will, but with his express consent.

But it was urged that the petitioner, the father of the prisoner. is not concluded by these enlistment papers, but may controvert the same, and show that the enlistment was not valid, for the reason and upon the ground that his son was, in fact, at the time of his enlistment, under the age of eighteen years. And the petitioner claimed the right to traverse the return, and show this fact.

On the contrary, it was insisted by the respondent that the return ousts me of jurisdiction, and that I must dismiss the proceedings under the authority of the case of Ableman vs. Booth. This presents a point of great delicacy, and of much public import

ance.

The question whether the Judges of the State Courts have juris diction in this class of cases, when it distinctly appears that the petitioner, or person in whose behalf the writ is applied for, is held under the authority of the United States, has been much discussed in the State Courts. In this State, an application for a writ of habeas corpus to the Supreme Court, for the discharge of a soldier enlisting, &c., was made in 1799, in the case of Husted, vide Johns. Cases 136, where it was denied-two of the Judges saying if the facts stated were returned to the habeas corpus it would be conclusive against his discharge, and one said the motion ought to be denied because the Court had no jurisdiction of the case, and the two other Judges were in favor of allowing the writ.

During the war of 1812, a like application was made to the Court in the case of Ferguson, 9 Johns. 298, when the writ was denied. This was an application by the father, and the affidavits state his son's age to be seventeen years. In this case, Judge KENT, in a very careful opinion, held that the State Courts had not jurisdiction of the case. He said: "The present case being one of an enlistment under color of authority of the United States, and by an officer of that government, the Federal Courts have complete jurisdiction in the case;" and he said further, "to interfere would be exercising power without any jurisdiction."

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