New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-01-28
GEN. NELL RELEASED.

GEN. NELL RELEASED.
AUTHORITY OF THE FEDERAL COURTS ASSERTED
JUDGE BLATCHFORD DECIDES THAT STATE
COURTS CANNOT DISCHARGE ENLISTED SOL
DIERs-ARMY OFFICERS TO BE PROTECTED.
A very important decision was given by
Judge Blatchford United States District Court
yesterday, releasing Gen. NELL from the custody OF
Sheriff Brennan, who held him by virtue OF WITT OF
attachment for contempt Of court. issued by Judge
McCunn the Superior Court Of this city, for refusing
to bring before him. writ Of habeas corpus the body
of John Casey a soldier in the United States Army.
After reciting the petition upon which the writ OF
habeas corpus issued the return made to 1t by Gen.
Eei the enlistment papers Of Casey and the petition
upon which based the writ OF habeas corpus that
took Gen. Ne out OF the hands of Judge McCunn Judge
Blatchford says:
While IL ia true that said Sheriff has arrested the said
reator by virtue of the said writ of
said and holds him In esSy snd IN y Se.
ton Constitution and laws OF the United states
1891 It was decided by in the District Court for this
district following two prior decisions Of the same Court
the 10th section Of the Of Feb a. 1884, and Of the fifth
section OF the act Of July l the R1%es OF
under OF Is he enlistment Of minors above
the e. IS years the 9s@ S sva aGe pa s
courts and confded wholly 10 the secretary OF
gwen to the Secretary Of war regard minors what
their when they enlisted or when they applied
of NewYork for this district January 1867 in the
OF in OConnOr, as Barbour, 26S decided that Con-
Judges from interfering with enstmen{s in the
that it had done so by y the two scts $40 OF
at Large ss91 and that the provision made by
the acts of 1864 for discharge by the Secretary
enlisted tho must be held 10 forbid other
OF exclusive jurisdicton In Of the kind, by the
Federal Government. This decision was made on re-
turn which in all essential particularly ike the re-
made Judge McCuDn In The case OF casey, ana
stated officer Gen. Butterfeld denied the juris
dicton of State Court and refused TO produce the
body Of the soldier. Such decision of the Supreme Court
has S SsD Sys9S ss ay IN aSs
writ Of habeas corpus which he issued, as be-
fore staten OF the Superior Court at CHAMBER
The decision does not show that the return made
4ood that it was not The decision concured in by
Justices Ingraham and Clerke, and dissented from by
M toses e that sG of y al s .,
came before Judge Leonard and he dismissed the writ
taken by Judge Loew of the New:York Common Pleas,
il the Of Thomas somers in Deeember 1869 and by
the same month. in the Of Herman Hsttenhurst.
These three cases were subsequent to the decision in the
t.s J sss Sy Of TI s S e..
one like that Of Casey, he held that on the return
Ssd BEEN taken by MI Justice Barnard in October 1866
in the Of David Clarke, and III November 1866 in
the en: of tss s. s Ks 81 oe sd me
CLARKE and Kent with the signatures upon the
ssssra M an 81 shen as we'll as in he Of Reilly
the officer to whom the writ directed stated in his
and refused to produce the body Of the soldier and the
return was in S % ne sas o a. s s IN thu e rse
papers show that the return OF the officer was not
These decisions were all made the ground that the
State Court Judge officer Is utterly without jurisdic-
Son 20 prma ae that he il held to service in the
by officer acting under the authority OF the United
and that the inquiry whether he an enlisted soldier
whether he could be lawfully enlisted, is one Of which
dction. OF Casey, not only did this appear
the return made by Gen NELL but II also appeared
from petition presented TO Judge McCunn for the al
iowance OF writ The petition alleged that Casey
RESTRAINED Of his liberty at Fort Columbus Sn%
the cause OF his restraint was that he enlisted in
the United 5es Afay p st S CITY OF oe
iTeguarity In his enlistment that he enlisted while
or consent Of his parents, who were both living The
petition ITSELF therefore showed on its face that Casey
e sd y Ee ea esf 10 So
him as an enlisted soldier and therefore showed that
IT, under the statute OF NewYork it was imperative
the Judge writ his Jurisdiction In the
appeared clearly from the return.
not necessary that the return should be verified
by OATH must regard the decisions In the case
have referred TO- whepe the returns made by the milf
tary officers were none OF them verified by OATH as
Of NewYork q X Z. &C., s2 provides that except
where the person making the return shall be q sworn
4
capacity, it shall be verified by his oath" Gen NELL
a public officer within the meaning OF this
provision, and he made his return In his official capacity
Nor was he bound 10 produce the body OF Casey. II
held by the Supreme Court of the United States in
the Of Abeman sgt. Booth (2l Howard COS, $751;
that where State Court Judge Ia without Jurisdiction
held In custody under the authority the United States
IL ID the duty Of the officer who holds such person In
custody not TO take such person. suffer him to lie
taken, before the State Court Judge the habeaA
corpus and also his duty. II the Court or Judge
attempts 10 control him IN any respect in his
such person. TO resist such attempt by That
In the Judge TO issue the OF habeas corpus In
the Of Casey On the facts set forth In the petition
for the writ
As the state Judge Jurisdiction 10 proceed in
the OF Casey, certainly after the return made by
Neill, and Jurisdiction to require body OF
be produced to require any other further
the warrant Of attachment against Gen. Nel which
states its face that 10 In Issued solely because Gen
NELL did produce the body OF Casey and did not
make any other return 10 the writ OF habeas corpus than
the return which no II shown To have made.
The question Is whether this Court has power on
the writ OF habeas corpus Issued 10 the Sheriff
Nell from the custody In which he Is held
warrant OF attachment thus Issued without JuTikdic
ton The seventh section Of the act OF March
Stat at Large, 63 provides that "cither OF the
tees OF the Supreme Court OF Judge OF any District
already conferred 6y law, shall have power 10 grant
Of babeas corpus In all cases OF prisoner pris
ODers in jail confinement where he or they shall be
committed confined by any authority OF law for
any omitted tO be done In pursuance Of law
of the United States order process, decree OF
Judge Court thereof anything In any act OF Con
or persons whom such writ Of habeas be
shall refuse 10 obey the same or shall neglect or
refuse 10 make return, or snail make "a
false return thereto In addition 10 the remedies already
guilty OF "a IDisdemeaDOr, and shall, on conviction
before any court VI competent Jurisdiction, he