The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1866-12-24
The Writ of Habeas Corpus and th,
Army.
IFrom the Army and Navy journal. ]

lFrom the Army and Navy J0urnal.]
Few commanding officers in the Army or Navy
have not, after few years service, been the unex-
pected recipients of State court process directing
them TO produce before it the person of some enlisted
man in their commands alleged to be unlawfllly de-
prived OF ms liberty. Sometimes tae petition will
set forth plea OF insanity at the time OF his enlist
men other cause, but more frequently tn plea is
the infancy of the recruit his enlistment without
Officers rule have but little acquaintance with
technical law procedures. The breviIy with
in which return must be made, usually precluJes
employment OF counsel to defend the interests of the
government, and il the State assume the au-
thorty To adudicate, the recruit may be discharged
and the government defrauted OF such bounty, pay
subsistence and allowances have been advanced to
him Should, however, such process issue from a
United States court, government may always be rep
resented by its district attorney. - 80 81 ~
The fact that during many years the question
whether State courts have power to continue pro-
ceedlngs under them when issued in OF detain-
er under the authority of the United States" had
been subject in the courts of grave discussion rem
ered il perpexing to the officer as 10 his duty In the
premises Should he refuse to obey, the court might
attach him for contempt, and per CONTRA should he
comply and surrender the to a possible dis
charge he might be guilty of aehes toward the gov
eminent. -.ss stl,.-5- = i
will not be uninterestng glance at the state OF
the question presented i'm several adiudicatons
made at different periods.
1t is singular circumstance that while such per-
sistent State Rights commemorative South Caro-
lima and Georgia acknowledged the exclusive power
Federal courts to take cOgnizance of applications
for wris of habeas corpus in the of u. s. sol
diers and seamen, on the other hand the courts of
Massachusetts, and Pennsylvania always stOutly
maintained their CO ordinate au thOrity. =
AS early as 1I99 wide Johns: cas- vol. L. lp 1861
the question came before the New York supreme
Hustled, u s. Army, for habeas corpus, but it was
refused on the grounds of want of jurisdiction
The next of interest occurred i'm the MARYLAND
Supreme Court in 1909 wide ID Halls Law Journal
1927 where the writ applied for on behalf OF
Landsman Emanuel Roberts, on the ground that he
had haat
$. ship of war then lying in Baltimore harbor The
naval officer made return thai Roberts had volunta-
was only sixteen years old and drunk when enlisted
Chief Justice Nicholson declared the enlistment to
have been under the authority Of the United States
and that Maryland had no right to interfere
During the war of 1872, Private Jeremiah Fergu-
son, Thirteenth Y. S. Infantry, then commanded by
Col john Christie, sought the aid of the New York
Supreme Court, to discharge him from his 0bliga-
lions soldier on the plea not only of being mi
nor aud under eighteen years OF age, but of having
enlisted without his parents consent The celebrat-
ell Chancellor Kent, then Chief Justice, wrote an
elaborate argument denying the application wide
Johnson's Rep, 1884, and taking the ground that as
the enlistment was under color Of the authority of
the United States the State court had no jurisdic-
ton.
This decision did not, however, prevent the same
court, at later day, from briefly affirming contrary
doctrine and for years it Che practice of judges
to investigate applications and discharge from service
So long as the regular army and navy remainedm m
significant In numbers, such rare and the
national government interposed no objection to an
officers acknowledging the writ. z d sli-.G IS
AS amatter in pdri materid il is worthy of obser-
Walton that u. s. District courts have almost uni
iormy denied the right OF any State to compel
the production of enlisted men on habeas corpus
In April, 1851, Judge Nelson, OF the u. s. Supreme
Court IN his charge to the Grand jury OF the South
ern District OF New York, remarked ON the power of
Stare Tribunals to Inquire into the legality of de-
tainer by an officer Of the general government
1.-The right TO issue the process of habeas corpus''
he says sis not questioned and it is the duty of the
officer to whom it is directed to obey the writ aby
making a RETURN But when it Is shown that the
commitment detainer is under the constitution
and law OF the United States or treaty. the power
of the State is at end and any preceding under
the writ is JUDGE and void. and under such
circumstances it is the duty of the officer not give
up his prisoner allow him to pass from his hands in
any stage of the proceedings
"a similar decision has been pronounced by Chief
Jusuee fancy in the u S. Supreme Court in the eel
prateu case OF Abelman Booth. 5-i 3t F
Recently The Michigan Court in re Spangler, lam.
Law reg, aug, 1873 and the Supreme Court of
New Jersey, before Judge Ogden, with concurrence
OF his ass0cia tes Dec IT, 1927 in the case of Private
Michael WEIGH, Fourteenth NJ Y Vounteers-a mi
nor-reafirIned the doctrine denying jurisdiction in
the State courts.
The present year has witnessed numerous decis
ions in the New Y rk courts OF similar tenor In
which Brevet Major General Daniel Butterfeld Su-
perintendent OF the General Recruiting Service was
the respondent.
Owing TO the freqdent of these processes
the general prepared the following formal return to