The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1867-09-13

TO relieve Charles MeCarsy from enlistment 10
Navy. Hearing at Chambers before Rufus +.
Tapley Jus Sup. Jud. CT. Aug. ID, 1867 and con-
tinued for sdvisemsnt TO Sept g, 1867.
OPINION nr TAPLErJ.
In this case the petitioner represents that
he is the father and lawful guardian of Char
Ies McCarcy minor Of the age OF sixteen
years, aud that the said Charles is detained
on board the Receiving Ship, Vandalia. ly-
ing in the harbor Of the Piscatnqua River,
and within the jurisdiction Of this court,
without his consent, by ono Edward O..
Grafton, aud prays for writ of habeds cor.
pus to hiring before the court the said Cllas.
and summon the said Edward to shew
cause for the detention and imprisonment
Of said Charles.
The petition was presented and the writ
ISSUED Aug. %, 1867 and made returnalIe
before Rufus 7. Tapley one Of the Justices
of the Supreme. Judicial Court Of the State
Of Maine on the 3tth day Of Aug. 1867
when tho case can,o on for hearing AT
Chambers. s.r .rg..t.. .-. ..i
The respondent Edward q. Grafton then
appeared aud filed his answer in which he
alleges,
THAT he 10 o Commander In the Navy Of the
United States and 10 and Tor sometime past has
s s IyinS in the SsIbSr Of Portsnou,h N that
on the nth day OF July last the said Charles Nc
Carey under tile name OF Charles McCarey enlist
cd in the Naval service OF the U. g.. a. landsman
he has been and still I, under the command Of .hs
respondent rs Commander OF said Ship. That
this respondent a. Commander Of said ship,
Carey as a isndsman IN the Naval Service Of the
u. T. for the reason that on the day above named,
the said Charles did In due and lawful form enlist
rs landsman In said Service for the term q three
Charles Was duly examined and accepted ny the
Surgeon Of said Ship and did mako oath that he
the said Charles was OF the ago OF twenty years
Service and did so without the solicitation or per-
suasion OF any persons whatever all Of which by
the said enlistment and the certificate or said oath
fully appear. wherefore the respondent prays
that the said Chas. may DO remanded TO the said
service OF the United states under the custody OF
this respondent Is Aforesaid"
The petitioner produces satisfactory evi.
dcnce that said Charles Is not yet seventeen
years fage and that the attempted enlist
nent was without the consent Of his parent
and lawful guardian. The respondent not
DENYING these facts, Claims that minor OF
tho age Of 10 years and upwards may enlist
in the Naval Service without the consent OF
his parent guardian or master and that the
oath of the recruit is conclusive evidence OF
his age, and therefore he should be remand.
ed TO the service ofihe government.
The official position Of tho respondent Is
not denied by the petitioner, and no qucs'
ton concerning the regularity ofthe at
tempted enlistment IN now presented DO.
yond that ofthe minority Of the recruit
1t will he perceived from this statement
of the case that an officer Of the United
States in command of Naval Ship, claims
the custody Of the subject oftho writ, un'.
der proceedings alleged to have taken place
in pursuance Of the laws Of the United
States.
This suggested to my mind question Of
or more properly speaking a
question Of the propriety OF farther proceed.
ing by State Judge or State Court, and
continued the case for farther nd
viscment
The respondent appearing without coun-
sci. have not the aid ALWAYS so desire
able in such cases) OF the research Of such
an officer of the court in examining this,
and other questions arising in tho case.
The case ms il presents itself to my mind
raises number Of questions.
As to the right Of the State Judges and
State Courts to issue the writs in such
cases.
|. Ever since the formation Of this State
il has been provided by statute that every
person unlawiully deprived of his personal
liberty by The act OF another except in Ger.
tain specified cases was entitled "Of right"
to the writ OF Habeds corpus. Rev. ST., oh.
90, Sec !; Rev ST., Of lS4l Oh. l40, Sec.
l; Smith, Laws of Maine Vol. ], Oh. "a,
acts Of 1891.
The excepted cases are tho same substan.
tally in oil the statutes and arc found IN
our present Rev. ST., Oh. %, Sec. 3, rs iol.
lows:
First, Persons committed to and confined
in prison for treason, felony, or suspicion
thereof. or as accessories before tho fact To
a felony, when the same is plainly and spec.
tally expressed in tho warrant Of coniniit-
ment.
Second, Persons convicted or in cSecu.
ton upon legal process criminal or civil.
Third, Porsons committed on mesne pro-
cess in any civil action on which thcy arc
liable to he arrested and imprisoned
by the Statute Of 1891 1t IL provided
"'rhat any person imprisoned in any com
mon Jail. or otherwise restrained OF his
personal liberty by any eDicr or officers ornny
other person or persons for any cause or upon
anu prtiences ,chaieer," shuli have the writ
except in the cases above specified, and it
is also provided that "thc Court or Judge in
term time aud the said Judge in vacation,
hereby are respectively authorized and re-
uuirei to award writ OF habeas corpus,
&C." '.. a "#'
This statute is a transcript of the Massa
chusetts statute of 1885. ....-.
BY the Revised Statutes of 1871 It WINS
provided that ''overy person deprived OF his
personal liberty BY The act Of another, OK.
cent in the cases before mentioned, "sllali
be entitled to. and have a right to prose-
cute, writ Of habeas corpus" to obtain re-
lief If uniarfully confined"
By tho statutes now in force, (Ulcv. 81,
Oh. 90, Sec. ~ "overy person unlawlully
deprived Of his personal liberty by the act
Of another" except in the cases above
named, "shall Of right have writ Of ha'
beas corpus"
The excepted cases, 1t will be perceived,
are those where the party is held by jude
eiai process.
The statute Of 1871 md the present Rev.
Statutes qualify the right before existing,
aud limit il to cases Of "unlawiih con6ne-
ment" aud "unlawfil deprivation OF per.
sonal liberty" This may extend tho in.
quiry beyond the exceptions enumerated
and authorize the court to make tho gen.
eul inquiry if the party is unlawfully i'm
prisoned, even though no may not DO with
In the excepted, cases. Under the present
law, although not within the exceptions
enumerated, yet if lawfully imprisoned no
is not entitled as Of right to the writ.
Il will be perceived, therefore, that in
cases not within the exceptions, the inqui.
~, upon the applications being made, may
ic Instituted us to the legality Of the re-
strnint complainedof Sn5"