#### Commonwealth *versus*Thomas Harrison.

The statute of the *United States,*which prohibits the enlistment of minors into the army, extends to foreigners who are minors as well as to citizens.

Where, upon the return of *habeas corpus,*a minor was brought up, and it appeared that lie was consenting to his restraint, the Court, notwithstanding, discharged him therefrom, leaving the person claiming his custody as master to his remedy at law, if again interrupted in the lawful custody and control of his apprentice.

A writ of *habeas corpus*issued to the defendant, commanding him to bring into court the body of *George Ribkin,*to do and receive, &c.

The defendant returned upon the writ that the said *George Rib-kin,*on the 12th of March current, was duly enlisted as a private soldier in the army of the *United States,*by the name of *Elipkm Church.*And it appeared, by a copy of the enlistment, that he had sworn that he was twenty-one years of age.

* *Townsend,*for the commonwealth,

offered as a witness the master of a *Russian*ship then lying in the harbor of *Boston,*on whose application the writ had issued, and who claimed the services of *Ribkin*as his apprentice, to prove him the same person who had so enlisted. But this evidence, being objected to, was rejected by the Court on the ground of his being the applicant, and other proof was produced of his identity, and of his being within age.

*Smith,*for the defendant,

cited the opinion of *Kent,*C. J., in *Ferguson’s*case, (1) that the state courts have no jurisdiction in cases of this kind. The other justices of the Supreme Court of *New York*concurred in refusing to allow the writ, and although not for the reason assigned by the chief justice, yet they expressly reserve themselves as to that point.

But *Smith*insisted more strongly on another objection to the writ in this case, that it appeared that *Ribkin*did not wish for liberation. The writ issued at the instance of a person who himself wishes for the custody of the party, and is influenced by no such motive as the statute contemplates. It is a fraud upon the law to use its pro cess thus to take a person from the situation in which he has voluntarily placed himself, and for the sole purpose of delivering him over to a custody and restraint which he desires to avoid.

*Townsend.*

All that is asked of the Court in this case is, that

the enlistment of this minor, without the consent of his parent or guardian, may be declared void. The scruples of Chief Justice *Kent**66did not influence his brethren on the bench with him; and they will of course have less influence here. In the case of the *Commonwealth*vs. *Hamilton,*(2) this Court set at liberty the child brought before them upon *habeas corpus,*with an injunction upon all persons not to molest or disturb her. The like proceeding in this case will leave to the master, who claims a right to *Ribkin’s*services, his *legal*remedies, if *any he has.*

(1)

9 *Johns. Rep.*239.

(2)

6 *Mass. Rep.*273.

*Per Curiam.*

The application for this writ of *habeas corpus*was made by the master of a *Russian*ship now in [ * 65 ] * this port; and he therein alleges that *George Ribkin*was a minor, under the age of twenty-one years, and his indented apprentice under the laws of *Russia,*to which country they both belong; and further stating that the said *Ribkin*was unlawfully restrained of his liberty by the respondent. The return upon the writ is, that *Ribkin*is a soldier in the service of the *United-States,*duly enlisted by another name, and under the immediate command of the respondent. A copy of his enlistment, being annexed to the return, it appears that *Ribkin*has sworn that he was of *age.*

We cannot avoid remarking the great impropriety of enlisting a foreigner in the merchants’ service of another country, to which we owe at least the duties of common hospitality, and particularly of administering an oath to him in a language of which it is apparent he is totally ignorant. We are satisfied, from the evidence which has been brought before us, that *Ribkin*is a minor; and, indeed, the appearance of the young man could hardly leave a doubt in any mind of the fact.

The laws of the *United States*prohibit the enlistment of minors into their armies, without the consent of their parents or guardians. A foreign minor is included in the prohibition. It was, then, an unjustifiable act in the officer to enlist him. The enlistment is void, and the defendant has no authority to detain him.

It has been objected that the party in this case is consenting to his restraint, and it has been said that it is an abuse of this process to use it in such a case. But other parties, as parents, guardians, &c., may have an interest in the liberty of minors; and our statute has expressly provided that *any*person may complain, &c. This Court has authority — and it will not shun the exercise of it on proper occasions — to inquire into the circumstances under which any person brought before them by writ of *habeas corpus*is confined or restrained of his liberty. If a minor is withheld from his parents or guardians against their will, this Court will put him at liberty *67from such restraint, that he may again come under his lawful governors, although the minor * himself, perhaps [ * 66 ] seduced by the evil counsels of his keepers, may still wish to remain with them. It is true, it may not, in every case, be the duty of the Court to put the minor into the custody of those who may claim the charge of him; but if they find him illegally restrained of his liberty, they will set him at large, leaving the further disposition of his person to the law of the land.

In the present case, it appearing to us that the supposed enlistment of *George Ribkin*is an act merely void, and that the defendant has no legal claim to the custody or control of him, we shall set him at large; and the master, claiming him by the laws of the *Russian*empire, must take his remedy by our laws, should he again be interrupted in the lawful control and direction of his apprentice, *(a)*

(a)

*Vide Commonwealth*vs. *Cushing,*post, 67, and cases there cited in the note