The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-04
In Chambers.
Before Recorder TallmadSa

In Chambers.
Before Recorder Tsllmadge.
| MAscH s.-THE soMsRs CAsE- Discharge or Ar.
the aisehsrge some days since Of two
and who were brought before the Recorder by
habea corpus to inquire into the Of their mprs.n
ment and detention the following testimony as to Nc
Nee Green and Wilson, was introduced in their BEHALF
in November LAST that time the last of November,
Mckee Green and Wilson, togehsr with witness
single irons upon their ANGLES that at the time they
We're being put in irons each ironed separately and
Lieut. Gsnsevoort stood over each Of them with cooked
spoke or made false motion, their brains would be
blown ou that Capt Mckenzie refused to give any
son why they were SO confined, after being put in irons
they were placed separately 10 different places upon the
deck and required to look aft and not their faces
in any other direction They were kept in this manner
until after Spencer, Small and CROMWELL were put to
death, after which time with their irons still on they
put into sacks made of tarpaun and the first night
the sacks tied their heads They were tight that
wasvery difficult to breathe, and very uncomfortable
ss ne SACKS round their necss
Then they were taken out of the sacks during the day
and put in again at night After they left St. Thomas,
they were continued in the sacks and in irons until they
came within two days sail Of the city of New York They
kept in the sacks in all u days When
North Carolina, under the Command Of Capt Gregory
on the 18th day Of December Captain Gregory took off
their irons treated them with Kindness and permitted
their friends to visit Them which known Captain
and on or about the sst December he caused
tnem 10 De removed North Carolina, taken
to the Navy Yard at BROOKLYN again roned as before
and placed six feet apart guards placed Them none
ofther relatives friends permitted speak
them and forbidden to speak loud, make any loud
noise pain of being gagged their irons increased
and placed in farther removed from their com.
weeks until one Of the imprisoned with the three
above named, to wit, Eugene Sullivan brought be-
the Steam Fsse Fulton beyond G
jurisdiction Of the County ofKngs On this vessel under
the command ofCsptan Sands they were treated with
kndneSs and their during the day
tme where they were kept about two days. when they
were brought before the Recorder on the writ in this
case.
The petitioners here rested their CASE and the counsel
| in behalf of the navy called as a witness
mers-He testified that the sacks put the pri.
soners out Of Kindness to keep them from the wet and
upon grating made of plank in order keep them from
waters that this grating raised them about two inches
On his cross exan,n alton he testified that the only
ming of the sacks that the bed blankets which be-
70 the were given to them to put into the
deck but that did not continue 1t was only dash
| from swell.
DANIEL MCKINLEY again called said that the sacks had
water in them constantly and their blankets and clothes
wet through the whole time and they contin-
the whether became cold and their feet frozen When
they taken out of the Sacks they unable to
| stand without help.
The for the navy here rested and the counsel
for the requested the opposite counsel to call
witnesses they mad any to show the cause Of the I'm.
Of subp9naing Lieutenant Gansevoort if the counsel for
the navy would introduce him witness to give
an opportunity OF crossexaminng him, that the psope
might have opportunity Of seeing what his testimony
would to- after a cross.exanination by counsel,
case This was declined The cause was then argued
by W. R. Beebe anG j. Holmes for the prisoners and Mr.
in the Recorders opinion His Honor the Recorder this
day delivered the following written opinion, and order
In the matter of the application Of Daniel Mckinley and
others, seamen and apprentices in the Navy, &C. on Ha
The petition of Amariah W. Golf represents that Daniel
Mckinley and Others are imprisoned in the Unad States
ship Hudson and steamship Fulton, both OF which are
ing within the jurisdiction of the county OF New York,
and that they not committed detained by virtue of
any issued by any Court of the United States
ment of any clv criminal tribunal or by execution
but that they illegally detained, and have been SUBJ
eeted to punishment illegal restraint and
sary cruelty, and pray that writ OF habeas corpus ISSUE
directed to Commodore Jacob JONES' commanding the
Navy Yard. requiring him bring the prisoners before
me, to inquire into the cause of their alleged imprson-
| ment
The writ of habeas corpus having been served the pri-
soners brought before compliance with tie
qurements and return is made to this writ by Captain
joshua 4 Sands the United states Navy upon
whom the writ OF habeas corpus in this cause served
The Return further forth thaDanel Mckinley and
others whose names are specified in said writ detan
ed in his custody board the Fulton public armed
sci OF the United States by virtue Of enlistment in the
Navy of the United States, apprentices end
and that such enlistment in accordance with the law,
Of the United Sstes and that they in custody accord
ing authority conferred by the rules and regulations
the Navy Of the United States dsting those
listed as seamen from those who are enlisted appren
| tices.
This return is made under OATH
is objected by the counsel for the prisoners that the
Return by Commander Sands is insufficient inasmuch al
the writ of habeas corpus directed Commodore Jones
and that the return should be made by him. The sst
that the writ shall not be dsobeyed but shall be
fcent if the person having the custody OF the prisoners
be designated by his own name assumed appellaon
and further provides that any who may be
with the writ shall be deemed the person whom di
rected, although it may be directed to him by wrong
name or description, or to another person"
The saith Sec of the statute provides that the person
upon whom any such writ shall have been served shall
state in his return whether he has the party il
custody, &c" Now the return made by Commander Sand
U. S. Navy upon whom the writ of habeas corpus va
served &C." bringing directly within the provisions
the statute Besides what evidence has been adduced
prove that the writ was served Commander Jones and
| not on Commander Sands7
The provisions ofths statute are thu. formed for the be
of the prisoner to prevent evasion of the beng
nant intentions of the law by mere technicaes, and
therefore it has been well remarked by distinguished
writer that the writ be served upon the subordinate
officer who ing the prisoner to his place of con
nement though directed to his principal In tins parti
cular deem that the return by Commander Sands is I
full compliance with the acquisitions Of the statute and
| sufficient
TO insufficient because it is not accompanied by cop,
Of the roll Of enlistment by the original enlistment
the prisoners. The statute ga r. s. p t66) direct
person upon whom such writ shall stat
in his return the authority and true Of his mprson
men or RESTRAINT ana ii ne De detained by virtue OF
writ, warrant or other written authority, copy shall
annexed the return and the original shall be produce
to the Court or officer on the return Of the writ
In the cases under consideration the roll embracing tn
enlistment OF Mckinley, Galla, Wilson and Walthan
proved by Mr.. Haggerty a subscribing witness
the signing of the roll by persons answering thos
Names but he unable to identify them was how
in proof before that the prisoners answered
those names on board the Somers, and acted without
monsrapce in the characters of and apprentice
during her voyage deem this to be sufficient ident
fcation of the persons as being the that
rolled as seamen or apprentices proved by Mr. Hae
gerty. As to the residue of the prisoners il is aege
that the Enlistment Rolls transmitted to the Nav
Department and could not be procured to be used tn
time that the return was made; subsequently, they hav
been procured.
The return then 10 as full could be made by Con
mander Sands and that being made under oath and nc
conrsdfcted shall regard presenting the true an
only ground for their detention to wit that the prsone
enlisted in the Navy the United States either