The New York herald., 1871-01-22
CONFLICT OF JURIsDICTIoi.
The Case Of General Ncill Taken from the
State to tho Federal Courts.
Judge McCunn Brought to Task BY United
States District Attorney Davis.

Judge McCunn Brought to Task BY United
States District Attorney Davis.
Nothing can be more interesting to those who
study questions Of law and nice legal distinctions
than tho jurisdiction OF courts entrusted with the
administration OF those enactmcnts which are very
properly supposed to emanate from the collective
wisdom OF the Legislature for the guidance and in
struction Of all welldisposed citizens. In the old
countries there is seldom clashing or connict Of
authority In matters purely legal because the ad-
ministrat on Of the law Is left to set Of COURTS
butin the United States owing to the popularity Of
our constitution, which acknowledges the ex-
istence both OF national and State authority at the
same, time 1t Is not to be wondered at that now and
again matters raising issues as TO the Jurisdiction
and extent OF the powers Of both should engage the
serious attention OF our tribunals.
question Just In point is now occupying the con-
siderauon OF the federal and State courts OF this
city, and how 1t arose was In this wise:-
recruit, one John Casey, whose name indicates
that he is Irish. born Of Irish parents enlisted in
the land forces OF the United States; he took the
oath usual for recruit in that service. and sub
sorfbed dec araton that when he enlisted. ne was
OF LgGAL, PROPER AGE,
and had authority by reason Of his intelligence and
physical condition, to do the acr which was COM
peted by his enlistment. The fact that he had
taken service In the United States army came
to the knowledge Of Casey's father, who,
from the proceedings he then resorted to,
does not appear to have been pleased
with the act Of his son. He sought the advice OF
counsel and found 1t. He went into the Superior
Court OF the city OF New York. before Judge McCunn
and complained to him that John Casey was ile-
held there against hts will by General Nein the
commander Of the national forces, who claimed
that the young man had enlisted as O soldier In q
regular ana legal manner.
After the papers had been laid before Judge Nc
Gum by Mr.. Sheehan, counsel for Mr.. Casey the
Judge
ISSUED WRIT OF HABKAs CORPUS
to General Neill to produce tho enlisted soldier.
Casey, before him. When General Nen received this
writ he was engaged In the discharge OF official du
ties OF importance, and was, therefore, unable to
appear personally before Judge McCunn, but he
delegated one OF his officers, Major Belger. to pro-
ceed 10 the Superior Court and there walt upon the
Judge with q return which the General had made to
islment paper In relation to Casey, taken from the
Official records OF General Neils department. a COPY
Of the oath taken by Casey to tie effect that he was
examined him; an extract from the decisions of the
Judge Advocate General, aud the return Itself, to
As 4 REGULARLY ENLISTED SOLDIER
OF the United States; that General Nsill did not re-
to Judge McCunn, but simply IN the discharge OF an
of1clal duty an officer OF the United states Army
having control over Casey, who was soldier OF that
army. Papers embOdying these statements were
sought to be placed before Judge McCunn; but 1t is
charged by the federal authorities that he did not
iook at them, and that he said he would not look at
TUE BODY OF CASEY WAS PRODUCED BEFORE HIM.
Some days subsequently. on the l7th Of this month
against General Neill. This attachment was served
by one OF Sheriff Brennan's officers on the General;
and IN the afternoon Lieutenant Gardner appeared
In the United States Court before samuel
Blatchord, Judge OF that court, and obtained
show cause why he held General Neill IN custody.
About half-past four O'Clock In the evening Sherin
and return e me WRIT na
Ssas x sa sns q b% s
New York. Mr.. Smith, Of the firm OF Brown, Hall
counsel Tor the Shcnn and Noah Davis, United
States District Attorney, for the government.
stated In the Sherrs return; ana the suggestion
OF Judge BlatchiOrd an issue was raised by way OF
traverse SO that the facts and merits Of the case
could be got at. The hearing Of the controversy
THE COURT ROOM
was crowded by persons anxious to know what turn
the proceedings would take.
Sheriff Brennan and General Nelll were present.
VI. tys
attended on benaif OF tn government with Lieuten-
ant Gardner as special military counsel and Mr.. A.
J. Vanderp0el and Mr.. Smith acted as counsel for
Sherin Brennan.
General Neil was briefly examined with regard to
the return he had made TO Judge McCunn. and the
papers accompanying it. as already alluded to in the
THE RETURN TO THE WRIT
Major Belger deposed that he had taken the papers
referred to BY General Neil to Judge McCunn while
he was sitting In court, but the Judge refused TO
'e me-
be produced; Casey's father was there and q gen.
tleman witness did not know; witness recognizes
the papers now produced as those he tried to hand
to Judge McCunn, and he certihea to those papers
from the records at Governors Island.
saw there looked over the papers and handed them
back TO me; tried to hand them back to the Judge
said nothing; cannot say that saw Mr.. sheehan
county OF New York.
Mr.. sheehan, who had originally appeared as
counsel for casey before the state court, also
examined He stated that he had objected to the
return OF General NeiL on TWO grounds-frst, that
the papers were not sworn to by the General, and
second, that the boy should be produced.
Cross-examined-Judge McCunn refused to look at
that the papers were incomplete.
MIR. Vanderpoel made q brief argument contend
ing that the process under which the Sheriff had
acted, being regular on the face OF it, the Juoge
could not go behind 1t. The return made by Gen
turn OF the Sheriff was regular 1t was the duty OF
the Court to remit the prisoner to the action OF the
state court
THE ACTION OF THE STATE COURT RESISTED.
Lieutenant Gardener made brief address to the
Court against the action taken by Judge McCunn
in the Superior Court In issuing the writ Of nabeas
corpus and his subsequent refusal to entertain tna
return made the writ He also preseD ted for the
consideration Of the Court the
THREE FOLLOWING POINTS,
Frst-The relator is entitled to his remedy here
under the acts Of Congress Of March q 1888, ana
February s. 1867, upon having established the facts
set forth in his petition.
s. cond-Tne Issuance OF the writ Of habeas corpus
by the Judge Of the Superior Court Of the city New
York on the petition presented to hum by James
Casey was illegal and unlawful.
T1ird-A respectful return having been made
showing that the said John Casey was held to SER